11196 2005 4095 101. - University of Oregon

CARL S. BJERRE

MENTAL CAPACITY AS METAPHOR*

ABSTRACT. Mental capacity is a foundational concept in contract law, but theterm is metaphorical, and a detailed analysis of three representative judicial opinionsshows that the explanations that courts give of the term are equally metaphorical. Assuch, the term illustrates well the cognitivist view that abstract concepts arise

through an imaginative but orderly projection from the domain of bodily and socialexperience. Legal Realists such as Felix Cohen condemned metaphors for theirsupposed failure to constrain judges, but recent empirical work suggests that met-

aphorical thinking is indeed constrained, and accordingly thinkers such as Cohenwould probably in fact have welcomed cognitive analysis of law, both for its methodsand for its substantively progressive disposition.

1. Introduction

It is axiomatic that contractual obligations are not enforceableagainst a person who lacks mental capacity. The principle is insepa-rable from contract law�s central ideal of personal autonomy.1 Andyet no one has ever noticed that the term ‘‘mental capacity’’ is en-tirely metaphorical. The term ‘‘capacity’’ refers literally not to mentalability, but rather to the volume of contents that a container is ableto hold. To refer to mental ability using this word, then, is to use itmetaphorically, that is, to describe one conceptual domain usingterms that literally refer to another. In this article I show thatcontract law�s use of the word ‘‘capacity’’ is just one aspect of a per-

* I am grateful to Andrea Coles-Bjerre, Mark Johnson, Jim Mooney, and SteveWinter for valuable comments on a draft of this article, to Stephen Morse forinsightful commentary at a panel of the International Congress on Law and Mental

Health in Amsterdam, and to participants at the International Roundtables for theSemiotics of Law in Lyon, the American Association of Applied Linguistics inPortland, and the Association for the Study of Law, Culture and the Humanities in

Austin. For much-appreciated editorial support I thank Sophie Cacciaguidi-Fahyand Anne Wagner, and for financial support I thank the Luvaas Faculty FellowshipEndowment Fund.

1 As Duncan Kennedy points out, the doctrines under which we decline to enforcecontracts are as constitutive of the regime of freedom of contract as the doctrinesunder which we do. D. Kennedy, ‘‘Distributive and Paternalist Motives in Contract

and Tort Law, With Special Reference to Compulsory Terms and Unequal Bar-gaining Power’’, Maryland Law Review 41/563 (1982) at 569�570.

International Journal for the Semiotics of LawRevue Internationale de Semiotique Juridique (2005) 18: 101�140DOI 10.1007/s11196-005-4095-8 � Springer 2005

vasive metaphorical system, and I explore the legal importance ofthat system against the background of the so-called Second Wave, orsecond generation, of the cognitivist revolution.

The vast amount of interdisciplinary work now flourishing inthe cognitive sciences is devoted to understanding the patterns anddynamics of human thought. Using disciplines from linguistics topsychology to neurology, the cognitive sciences seek to move be-yond complacent assumptions that the mind is a closed black boxthat resists analysis and just seems to work in an unproblematicand neutral way. The analysis of metaphor in discourse is just onefacet of this new breed of cognitive analysis, and in this brief arti-cle I can only begin to give an account of even that facet. But bygiving sustained attention to a single complex of metaphors in asingle and heretofore neglected area of law, I hope to show howpowerful these and related tools can be, while also demonstratingsome important continuities between cognitive analysis and the ear-lier work of the Legal Realists.

Part 2 of the article shows that the phrase ‘‘mental capacity’’ isjust the tip of an iceberg. This phrase is not an isolated figure ofspeech, but rather forms part of a pervasive mental network thathelps to metaphorically structure the way judges and others con-ceive of mental power and, by extension, the mind. In Part 3, Iclosely analyze excerpts from three judicial opinions that are rep-resentative of contract law�s traditional view of mental capacity asthe power to understand. I demonstrate that this traditional viewrests on a complex of four principal metaphors drawn fromeveryday physical experiences such as containing, seeing, graspingand lifting. When judges and other wielders of the language writeof mental capacity as the power to understand, they conceive ofcapacity in terms of those physical experiences. In Part 4, I firstshow that the cognitivist analysis of metaphor seems on a superfi-cial level to confirm the critique of empty concepts that was artic-ulated by the legal realists � represented here, for sharpness offocus, by Felix Cohen�s Transcendental Nonsense and the Func-tional Approach � and then I proceed to show that cognitivistanalysis, properly understood, actually resonates deeply withCohen�s affirmative program. In particular, a few simple cognitiv-ist concepts suffice to establish with powerful empirical force thatjudicial construction of legal concepts derives from physical andsocial realities. Part 5 extends this portrait of the echoes betweenthe two schools of thought by suggesting that cognitivism tends

CARL S. BJERRE102

to share legal realism�s substantive orientation toward progressivereform.

Doctrinally, the article shows that the traditional approach tomental capacity remains dominant, and that only a feeble successhas been achieved by a progressive approach that takes accountof volition in addition to understanding. Jurisprudentially andlinguistically, the article shows that both the traditional and theprogressive approach are equally founded on metaphor; thatboth have a claim to conceptual legitimacy; that much of thetraditional approach�s dominance may be attributable to thestrength and coherence of its metaphors; and that the progressiveapproach can potentially gain a similar dominance. Programmati-cally, the article supports the progressive approach on the simplegrounds that concepts such as mental capacity should beconstructed in a way that reflects the values we wish to advance� here, autonomy and the consensuality of transactions. Theprogrammatic point is addressed only briefly because it is fairlyclear as an analytic matter, but it is nonetheless a linchpin ofthe article. The success of the progressive approach can directlyaffect people�s lives, and the fact that the jurisprudential and lin-guistic points give new power to the progressive approach showsthat they can carry great practical value in addition to their the-oretical interest.

2. Metaphor’s Conceptual Nature

Traditionally, American contract law has assessed a person�s men-tal fitness to be bound by contract using only a single criterion: hisor her power to understand the transaction.2 Persons who do havethe power to understand are said to have ‘‘mental capacity’’ andare therefore bound by the transaction, while persons who lackthat power are said to lack mental capacity and are not bound.Notwithstanding occasional hints to the contrary,3 this power tounderstand has remained the sole criterion for mental capacity formost of the decades since the birth of modern contract law. Anddespite the emergence in a few jurisdictions of a more progressive

2 E.g., Paine v. Aldrich, 133 N.Y. 544, 30 N.E. 725 (1892). This case is furtherdiscussed infra in Part 3.

3 See infra note 118.

MENTAL CAPACITY AS METAPHOR 103

approach involving volition,4 most jurisdictions continue today toadhere to the traditional power-to-understand approach.5

The concept of mental capacity has never been examined with aview to the literal or non-literal nature of language. But when thesubject is raised, one immediately notices the seeming peculiaritythat the topic of power to understand is glossed by the term ‘‘capac-ity.’’ This word is literally a reference to containers rather than tomental power,6 and of course, the mind is not literally a containerof any kind.7 When the word is used in reference to mental power,that reference operates by means of metaphor, that is, the descrip-tion of one domain (often referred to as the target domain) in termsborrowed from another domain (the source domain). To use theterm mental capacity is to describe the target domain, the mind, interms borrowed from the source domain, containership. The con-tainer-related meaning of the word ‘‘capacity’’, standing alone,would be an insubstantial basis on which to make any large asser-tions about this body of contract law, let alone about language orconcepts generally. After all, homonymy is common in the Englishlanguage: two meanings are often carried by a single word, as withthe word ‘‘pen’’, which can refer either to a writing implement or toa small enclosure for farm animals, and no one would argue thatsuch a phenomenon alone has any great significance. But the case of‘‘capacity’’ is much more than mere homonymy: the dual meaningsof the term ‘‘capacity’’ are but one indication of a heavily system-atic pattern of language and, it appears, of thought.

Traditionally, metaphor has been understood as a rhetorical de-vice, as an ornament tacked onto independently formulated literalmeanings, as a dispensable or persuasive embellishment of whatwould otherwise be ordinary speech or writing. But a very differentview of metaphor began to emerge with the work of philosopher of

4 See infra Part 5.5 See infra notes 100�101 and accompanying text.6 As a historical matter, the word initially referred only to containers: its root is

‘‘ability to receive’’ or ‘‘ability to contain.’’ Oxford English Dictionary, 2nd edn. Vol.2 (New York: Oxford University Press, 1989) 857. Whether the other senses of the

word that have emerged in the meantime are literal or metaphorical is a question ofdegree: some would view them as metaphorical extensions of a single literal coremeaning, and others would view them as new, independently lexicalized literal senses

of their own. For discussion of these other senses (and in particular the sense ofhaving power by virtue of one�s office or position, as in ‘‘the heir apparent�s capacityas attorney-in-fact’’), see infra notes 42 and 51�59 and accompanying text.

7 The head is a container of sorts, but contract law is concerned with mentalcapacity and not cranial capacity.

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language Max Black,8 and under the impetus of George Lakoff andMark Johnson�s ground-breaking Metaphors We Live By9 that viewis now flowering in the fields of philosophy of language, linguistics,psychology, neurology, and the other cognitive sciences. The cogni-tivists propose that metaphor, far from being a post hoc embellish-ment of already-formulated thought, is a tool with which the mindconstructs concepts in the first place. Metaphor doesn�t just expressthoughts in an interesting way; it helps to determine or discoverthem. Metaphors are a way in which we understand. In a word,they are not just linguistic, but conceptual.10 And in this article Iargue that the law of mental capacity to contract substantiates andis illuminated by the cognitivist view.

The cognitive view of metaphor is relatively unconcerned withsingle expressions or figures of speech, and concentrates instead onthe patterns of thought and inference that are revealed by largersystems of expressions. Under the cognitivist view, a metaphor isdistinct from the particular metaphorical expressions that instanti-ate, reveal, or give surface expression to a metaphor. Metaphoricalexpressions are particular linguistic figures of speech, and meta-phors are more general conceptual structures that underlie and ani-mate the particular metaphorical expressions.11 Thus, ‘‘mentalcapacity’’ is just one metaphorical expression, and it instantiatesthe broader conceptual metaphor THE MIND IS A CONTAINER.

12 This

8 M. Black, ‘‘Metaphor’’, in Models and Metaphors: Studies in Language andPhilosophy (Ithaca: Cornell University Press, 1962), 25 reprinted in M. Johnson, ed.

Philosophical Perspectives on Metaphor (Minneapolis: University of MinnesotaPress, 1981).

9 G. Lakoff and M. Johnson, Metaphors We Live By (Chicago: University of

Chicago Press, 1987, with 2003 afterword).10 This emphasis on the role of metaphor in concept formation is in some ways

related to, but more basic than, the emphasis that some rhetoric-based analysts placeon the role of metaphor in argumentation, persuasion, or effective communication.See, e.g., J. Charteris-Black, Corpus Approaches to Critical Metaphor Analysis (NewYork: Palgrave MacMillan, 2004). The study of thought is different from the study

of the manipulation of thought, and though the former is surely a useful tool for thelatter, it is also much more than that. By the same token, the cognitive framework ofa speaker or writer is generally more subconscious than his or her pragmatic

intentions, and thus potentially revealing in a different way.11 G. Lakoff, ‘‘The Contemporary Theory of Metaphor’’, in Metaphor and

Thought, 2nd edn., ed. A. Ortony (Cambridge and New York: Cambridge UniversityPress, 1993), 203.

12 For ease of exposition this article refers to overall conceptual metaphors with

small capital letters and to individual linguistic expressions with italics or quotationmarks.


article, by the same token, uses the expression ‘‘mental capacity’’only as the point of departure for an analysis of a complex of re-lated expressions that are found in the case law. By analyzing se-lected excerpts from the case law I show that at least fourconceptual metaphors are at work: THE MIND IS A CONTAINER meta-phor already mentioned, as well as KNOWING IS SEEING; IDEAS ARE

OBJECTS; and MENTAL WELL-BEING IS PHYSICAL WELL-BEING.13

3. Traditional Capacity Case Law as a System of Metaphors

This Part begins by relating the basic facts and the legal pro-nouncements from three representative mental capacity to contractdecisions. Then, in Part 3.2, I analyze that raw discourse into fourgroups of expressions corresponding to the four metaphors onwhich this article centers. Though both sections of Part 3 remainrelatively laden with concretes at the expense of theory, this is nec-essary groundwork and context for the theoretical explanation ofthe cognitivist treatment of metaphor, which is offered in Part 4.

3.1. Representative discourse from three judicial opinions

One central chestnut in the mental capacity case law is Paine v.Aldrich, a New York Court of Appeals opinion from the late 19thcentury.14 John Paine, six months before his death at age 92, sold ahighly valuable block of New York City real estate to ElizabethNoble, who then resold a portion of it to Elizabeth Aldrich. AfterPaine�s death, his grandson William Paine sued Aldrich, allegingthat the sale to Noble was invalid due to the grandfather�s lack ofmental capacity and that he, William, was therefore the parcel�strue owner by virtue of John�s will. The lower courts rejectedWilliam�s allegations and ruled in favor of Aldrich. The New YorkCourt of Appeals affirmed, holding that the evidence supported theconclusion that John

had such mental capacity at the time of the execution of the deed that he could col-lect in his mind without prompting, all the elements of the transaction and retain

them for a sufficient length of time to perceive their obvious relations to each otherand to form a rational judgment in regard to them.15

13 As discussed below, the number of conceptual metaphors actually involved here

can be viewed as being even smaller. See infra note 79 (discussing Eve Sweetser�sMind-As-Body Metaphor).

14 133 N.Y. 544, 30 N.E. 725 (1892).15 133 N.Y. at 546.

CARL S. BJERRE106

Another influential early opinion is Sutcliffe v. Heatley,16 deci-ded by the Supreme Judicial Court of Massachusetts. Mary Sut-cliffe had suffered from an evidently serious case of epilepsy forabout ten years, among other possible mental impairments. Shemortgaged her real estate, and her conservator sued to invalidatethe mortgage documents on the grounds that Sutcliffe lacked men-tal capacity. The court articulated the law as follows:

The test in cases of this kind is whether the person executing the instrument hadsufficient mental capacity to be capable of transacting the business. If she could

not understand the nature and quality of the transaction or grasp its significance,then it was not the act of a person of sound mind. There may be intellectual weak-ness not amounting to lack of power to comprehend. But an inability to realize

the true purport of the matter in hand is equivalent to mental incapacity.17

And, in reliance on the fact-finder�s conclusions that Sutcliffe ‘‘didnot have sufficient mental strength to care properly for her prop-erty and to understand the effect of the [mortgage documents],’’ thecourt ruled that the mortgage documents were void.

A modern Alabama decision, Lloyd v. Jordan,18 rounds out thisshort sampling of opinions. In 1983, George Lloyd, who was thenmarried to Olivia, had purchased an annuity naming Betty LouJordan and Marion Pitts � his daughters by a previous wife � asbeneficiaries. George and Olivia later divorced, but remarried in1987, and shortly after their remarriage Olivia obtained a form forGeorge to sign, making herself the annuity beneficiary instead ofBetty Lou and Marion. However, George had been suffering frommental problems since a few months before the remarriage, and wasdeclared non compos mentis a month after it. Olivia herself testifiedthat she ‘‘couldn�t say’’ that George ‘‘knew what he was doing’’ onthe day he signed the form. The probate court ruled that the change-of-beneficiary form was not effective, and the state Supreme Courtaffirmed, quoting extensively from a legal encyclopedia:

[E]ach party must be of sufficient mental capacity to appreciate the effect of whathe is doing…. There is no contract where one of the parties was, by reason of…mental aberration, or otherwise, incapable of understanding and appreciating thenature, force, and effect of the agreement. . ., as where he was unable to do so

16 232 Mass. 231, 122 N.E. 317 (1919).17 232 Mass. at 232�233.18 544 So.2d 957 (Ala. 1989).


because insane, or mentally infirm, or because of incapacity resulting from lunacy,

idiocy, senile dementia or imbecility, or any other defect or disease of the mind.19

The court added that

a person�s contract will not necessarily be invalidated because he was aged, men-tally weak, and feeble in mind….20

but, on the strength of the evidence, upheld the determination thatBetty Lou and Marion were the beneficiaries of the annuity.

As shown below, each of these three excerpts is heavily freightedwith metaphorical expressions demonstrating the non-literal concep-tions that judges and others have of ideas such as mental power.Moreover, the metaphors involved in these three excerpts are repre-sentative of metaphorical discourse that recurs over and over in thisarea of the case law.21 A different selection of opinion excerptswould generate a somewhat different sampling of metaphoricalexpressions, but not a significantly different body of metaphors.

3.2. The opinions analyzed

Each of the opinions excerpted above is, of course, an elaborationof the single legal principle already discussed, namely that mentalcapacity to contract depends upon a person�s power to understandthe transaction. But it is striking that each of the opinions explainsthat principle almost entirely in metaphorical terms, and that thenumerous metaphorical expressions in the excerpts turn out toinstantiate only four principal metaphors: THE MIND IS A CONTAINER;KNOWING IS SEEING; IDEAS ARE OBJECTS; and MENTAL WELL-BEING IS

PHYSICAL WELL-BEING.

Each of these metaphors is important in its own right as a com-ponent of the way we think (in life generally as well as in law).And the fourth metaphor, MENTAL WELL-BEING IS PHYSICAL WELL-

BEING (or actually a subset of that metaphor, which I call MENTAL

19 544 So. 2d at 959, quoting 17 C.J.S. Contracts § 133(1) (Brooklyn: Academic

Law Book Co., 1963), at 858�859. It is startling to see offensive language like thisbeing used in such a recent case, even if only through quotation to an older source,and I reproduce and analyze it here only because of the probative value of the

metaphors that it instantiates.One significant passage of the C.J.S. quotation is omitted from the text above

and discussed infra note 118.20 Id.21 The excerpts given here do tend to be denser than usual in the concentration of

their metaphorical expressions, but this atypicality merely streamlines the expositionand does not change its substance.

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POWER IS PHYSICAL POWER), is particularly illuminating for purposesof this article because it shows how the ‘‘mental power’’ sense ofthe word ‘‘capacity’’ is related to its other prominent legal sense,‘‘position held’’ (as in ‘‘In my capacity as Mayor, I hereby declareFebruary 23 to be Founders� Commemoration Day’’). But the cen-tral importance of the detailed analysis of the opinions� metaphorsthat follows is two-fold. First, it shows that the metaphoricalexpressions have an astonishing degree of mutual coherence. Andsecond, it shows that together, the four metaphors exhaust virtuallyevery statement in the excerpts. Thus, nearly everything of signifi-cance in the judicial language is to be found by analyzing the meta-phors, and one is left marveling at the fact that the statements oflaw are little more than metaphorical confections. But as Part 4shows in depth, this fact is no reason to condemn metaphor as atool of judicial reasoning.

The four principal metaphors emerging from the opinion ex-cerpts, and the way that the various particular expressions fromthose excerpts fit into the metaphors, are examined in detail in thisPart 3.2. The detailed network of correspondences and resonancesdemonstrated here can be somewhat dizzying before it is cast into asimplifying theoretical framework (as Part 4 will do). But ratherthan belaboring an as-yet useless-appearing theory first and thenrehabilitating it with facts, it seems preferable to unleash the unrulyfacts first and then show the explanatory power of the theory. I of-fer here just one foretaste of the theory that will follow in Part 4,which is that the myriad metaphorical expressions analyzed herecan all be marshaled into order using four powerful and simple lin-guistic concepts. The four concepts are polysemy (multiplicity ofmeanings), inferential correspondence (coherence between the vari-ous instantiations of a metaphor), novel extensions (the expressivefunctionality of newly invented expressions within a metaphor) anddiachronic semantic change (the metaphorical nature of meaning-shifts across time). Examples of all four concepts are at work in theanalysis below, and will be tied together in Part 4.

3.2.1. THE MIND IS A CONTAINER

We begin with the metaphor that the MIND IS A CONTAINER simplybecause it most centrally underlies the expression ‘‘mental capac-ity.’’ The same metaphor also underlies a number of other expres-sions that are a common feature of our ordinary patterns ofthought. For example, sound mind refers to mental health, but wealso routinely use the term sound to refer to structural solidity, as


in the phrase sound construction, and perhaps the reason for thisdouble meaning is that we conceive of the mind as a container,which functions well when soundly constructed and poorly whennot. Similarly, we call people narrow-minded or broad-minded, withreference to the configuration of their mental containers; pop psy-chologists explain that some people compartmentalize, meaning thatthey tend to over-separate various contents of their mental contain-ers; and in slang a person may be described as a crack-pot, whichclearly refers to the structural unsoundness of a mental container,much along the lines of ‘‘sound mind.’’

The three judicial opinion excerpts reflect the same patterns ofthought, repeatedly describing the mind in terms of a container. Tobegin with, Sutcliffe refers to being of sound mind, and as alreadyseen, one important meaning of soundness is structural solidity orquality of construction, as with a house that has a ‘‘sound founda-tion’’.22 Lloyd refers to dementia, which is defined by more thanone authority as the condition of being out of one�s mind,23 as ifour minds were containers that we are within while mentally welland outside of while mentally unwell. Paine refers to an ability tocollect elements of a transaction in the mind, and the container-re-lated meaning of ‘‘in’’ is of course clear. Sutcliffe refers to beingcapable of transacting business, and though the word ‘‘capable’’ to-day refers to general ability, it is directly related to the word‘‘capacity’’ both in derivation and in meaning: one early definitionof capable is ‘‘able to take in, receive, contain, or hold; havingroom or capacity for’’.24 Against this background, the fact that thePaine and Sutcliffe opinions both refer to mental capacity, and thatSutcliffe also uses its antonym incapacity, stand much more clearlyrevealed as instances of metaphorical expressions derived from theability or absence of ability to contain.

3.2.2. KNOWING IS SEEING

The second principal metaphor at work in the quoted passages isKNOWING IS SEEING. A number of scholars have noted that the men-tal phenomenon of knowing or understanding is often referred toin terms of the physical phenomenon of seeing. For example, we

22 This sense may be derived from an additional sense of ‘‘sound,’’ i.e. healthiness.See infra note 47 and accompanying text.

23 Oxford English Dictionary, Vol. 4 (1989), 434�435; Webster�s New InternationalDictionary of the English Language, 2nd edn (Springfield, Massachusetts: G & CMerriam & Co., 1943), 695.

24 Oxford English Dictionary, Vol. 2 (1989), 856.

CARL S. BJERRE110

say ‘‘I see’’ when we mean that we understand, and with similarlymetaphorical meanings we say ‘‘his motives are transparent’’, ‘‘yourexplanation is unclear (or opaque)’’, ‘‘can you shed some light onthe matter’’, ‘‘her remark was brilliant’’, ‘‘the detective revealed thetruth,’’ ‘‘Franklin discovered that lightning is a form of electricity’’,‘‘the proposal looks different from my point of view,’’ and so onthrough examples that are pervasive and virtually infinite.25 Judicialopinions on the question of mental capacity similarly often refer toa mentally ill person�s ‘‘lucid intervals.’’

Paine rests upon this same metaphor when it refers to the needto perceive the obvious relations between a transaction�s elements:the main sense of ‘‘perception’’ is an interaction between the body�ssense organs and the physical world. The word is not specific to thesense of sight as opposed to hearing or the like, but if any clarifica-tion is needed, Paine�s immediate context of perceiving the obviousrelations between the transaction�s elements makes clear that sightis the reference, since the term ‘‘obvious,’’ in reference to the sen-ses, generally means obvious to the sight. Paine goes on to refer toforming a judgment in regard to the elements, and though the pri-mary sense of this phrase is ‘‘about’’, the underlying root of ‘‘look-ing at’’ is evident.

Finally and most important, the word understand (in Sutcliffeand Lloyd as well as innumerable other glosses on mental capacity)seems itself to be a metaphorical extension from the ideas of lightor seeing. The word�s meaning evolved in Old English, and a defin-itive analysis of it has eluded the experts so far, but one appealingtheory rests on the point that under- in Old English carried a senseof ‘‘among,’’ and that ‘‘standing among’’ would be associated withphysical closeness and therefore with knowing,26 predominantly

25 E. Sweetser, From Etymology to Pragmatics (Cambridge and New York:Cambridge University Press, 1990), 28�48; G. Lakoff and M. Johnson, Philosophy

In the Flesh (New York: Basic Books 1999), 238�240; G. Lakoff and M. Johnson(1987), 48; C.J. Kay, ‘‘Metaphors We Lived By: Pathways Between Old and ModernEnglish’’, in Essays on Anglo-Saxon and Related Themes in Memory of Lynne Grundy,

eds. J. Roberts and J. Nelson (London: King�s College 2000) 273, 283�284.26 E.g., O. Jakel, �The Metaphorical Conception of Mind: ‘Mental Activity is

Manipulation�, in Language and Cognitive Construal of the World, eds. J.R.Taylor

and R.E. MacLaury (Berlin and New York: Mouton de Gruyter 1995), 224. LeonardBloomfield also wrote that the ‘‘stand close to’’ or ‘‘stand among’’ sense of‘‘understand’’ ‘‘must have been central at the time the compound was formed,’’ but is

now obsolete. L. Bloomfield, Language (London: George Allen and Unwin Ltd.1933), 433.


through the sense of sight one presumes. Alternatively, the Old Eng-lish language and literature scholar Carole Hough shows in a recentarticle that the verb standan in Old English carried not only thesense of ‘‘to stand, to remain’’ but also the sense of ‘‘to appear, toshine’’.27 She therefore suggests that the modern meaning of‘‘understand’’ is attributable to a metaphorical shift in the mean-ing of standan from the source domain of physical illumination tothe target domain of mental illumination, just like the metaphoricalshifts in meaning ‘‘see’’, ‘‘transparent’’ and the other terms discussedhere.

3.2.3. THINKING IS OBJECT MANIPULATION

The third metaphor at work in the opinion excerpts is also a stan-dard part of our thinking pattern: THINKING IS OBJECT MANIPULA-

TION. We understand the process of thinking in terms borrowedfrom the physical manipulation of objects.

‘‘Ideas are objects that you can play with, toss around, or turn over in your mind.To understand an idea is to grasp it, to get it, to have it firmly in mind. Communi-

cation is exchanging ideas. Thus, you can give someone ideas and get ideas acrossto people. Teaching is putting ideas into the minds of students, cramming theirheads full of ideas. To fail to understand is to fail to grasp, as when an idea goes

over your head or right past you. Problems with understanding may arise when anidea is slippery, when someone throws too many things at you at once, or whensomeone throws you a curve’’.28

By the same token we say ‘‘Let me get my thoughts in order,’’ ‘‘letme gather my thoughts,’’ ‘‘I am groping for the rest of the idea,’’‘‘he picked up Italian quickly,’’ ‘‘her thoughts are scattered,’’ and

27 C. Hough, ‘‘New Light on the Verb �Understand�’’, in New Perspectives onEnglish Historical Linguistics: Selected Papers from Glasgow, 21�26 August 2002,Vol 2, eds. C.J. Kay, et al. (Philadelphia: John Benjamins, 2004) 139. In Hough�sanalysis, the prefix under- is not semantically important (and its main function isperhaps to convert standan from an intransitive verb to a transitive one). Id. at 146.For other possible analyses of ‘‘understand’’ including a summary of the literature,

see generally J. Newman, ‘‘How to Understand understand’’, NeuphilologischeMitteilungen 102 (2001), 187�190.

28 G. Lakoff and M. Johnson (1999), 240�241. The quoted references to

‘‘exchanging,’’ ‘‘giving’’ and ‘‘getting across’’ ideas are allusions to what MichaelReddy dubbed the Conduit Metaphor, in which meaning is understood as thecontents of packages that are transmitted from person to person. Michael J. Reddy,

‘‘The Conduit Metaphor: A Case of Frame Conflict in Our Language About Lan-guage,’’ in Ortony (1993), 164.

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‘‘he is mixed up.’’ And the same pattern of metaphorical expressionis at work with somewhat more antiquated or legalistic expressions:the term deranged 29 derives from the same root as the words ‘‘ar-range’’ and ‘‘rank,’’ and to say that a person is deranged is there-fore to speak of his or her disarrangement of objects.30 The same istrue of the phrase ‘‘mental disorder.’’ And the law-Latin phrase noncompos mentis (which derives from componere, meaning to put to-gether or compose, plus mens, meaning mind) is still sometimesused in contemporary judicial opinions.31

Paine refers to collecting the elements of a transaction, andthereby the ideas essential to an exchange are described in termsborrowed from the domain of physical objects.32 In the same vein,Paine refers to retaining the elements, as if they were objects thatmight roll away, and to forming a judgment, as if the judgmentwere a malleable physical substance to be shaped or configured.33

The judgment should be rational, a term whose contemporarymeaning is purely mental but whose roots are tied to reckoning,34

that is, counting or enumerating of objects. Sutcliffe refers to grasp-ing a transaction�s significance, and ‘‘grasping’’ is of course primar-ily something that we do to an object with our hands.35 (Similarly,

29 E.g., Brown v. Harris, 240 F.3d 383, 388 (4th Cir. 2001).30 Oxford English Dictionary, Vol. 4 (1989), 495.31 E.g., Knight v. Lancaster, 988 S.W.2d 172, 177 (Tenn. App. 1998) (quoting trial

judge).32 See G. Lakoff and M. Johnson (1999), 240�241.33 The non-physical senses of the term ‘‘form’’ are more important than the

non-physical senses of the other terms discussed here, perhaps chiefly due tothe word�s use in Plato. However, in Paine, it is clearly a metaphorical sense ofthe physical meaning that is intended. See also R. Williams, Keywords: A Vocabulary

of Culture and Society, Rev. edn. (New York: Oxford University Press, 1983),137�140 (observing that the word�s uses span ‘‘the whole range from the externaland superficial to the inherent and determining’’).

34 Oxford English Dictionary, Vol. 13 (1989), 218�219; C.T. Onions, ed. TheOxford Dictionary of English Etymology (New York: Oxford University Press, 1966),741, 744. The sense of ‘‘rational’’ as reckoning is visible in contemporary English

terms such as ‘‘ration’’ and ‘‘ratio.’’ This sense is also tied to the prevalent compu-tational view of the mind as a computer program that manipulates 1�s, 0�s and othersymbols. See generally G. Lakoff and M. Johnson (1999), 257�265. See also infra

note 36 and accompanying text.35 The term ‘‘grasp’’ is particularly important because the entire IDEAS AREOBJECTS

metaphor is sometimes articulated in the terms UNDERSTANDING IS GRASPING. E.g.,

S.L. Winter, A Clearing in the Forest: Law, Life, and Mind (Chicago and London:University of Chicago Press, 2001a), 58.


‘‘significance’’ is derived from the noun ‘‘sign,’’ which is primarily aphysical mark on an object.36) Sutcliffe refers to realizing the pur-port of a matter, and the root of ‘‘realize’’ is ‘‘thing’’ (as visible incurrent legal terms such as a trust ‘‘res’’ or ‘‘real property’’),37

while the root of ‘‘purport’’ is that which is carried from one placeto another (as visible in contemporary English words such as ‘‘por-table,’’ ‘‘porter’’ and ‘‘portamento’’).38 Sutcliffe goes on to refer to‘‘the matter in hand,’’ and not only is ‘‘in hand’’ a wonderfullydirect metaphorical expression but ‘‘matter’’ itself has a root senseof physical substance.39 Lloyd refers, twice, to appreciating theeffects of an action or agreement, and the root of that verb is to seta price to something.40 A much more important instantiation isSutcliffe�s term comprehend, which is derived from the Latin prehen-dere, meaning ‘‘to grasp’’ or ‘‘to seize’’.41 And even more impor-tant are the terms capacity or incapacity (used in all threeopinions), capable (used in Sutcliffe) and perceive (used in Paine):each of these terms is derived from the Latin capere, to take.42

3.2.4. MENTAL WELL-BEING IS PHYSICAL WELL-BEING

The fourth principal metaphor appearing in the case excerpts takestwo different forms. Its more general form, MENTAL WELL-BEING IS

PHYSICAL WELL-BEING, is not as pervasive as the other three meta-phors discussed above, but it does appear in non-legal as well as

36 Oxford English Dictionary, Vol. 15 (1989), 449�453.37 Id., Vol. 13, 277, 272�274.38 To use ‘‘purport’’ in its usual modern sense as ‘‘carrying meaning’’ is to use the

Conduit Metaphor, supra note 28. In addition to the many instantiations given by

Reddy, one closely related to ‘‘purport’’ is ‘‘conceptual freight.’’39 Oxford English Dictionary, Vol. 9 (1989) 479�482. The physical meaning of

‘‘matter’’ is still somewhat current, in phrases like ‘‘mind over matter.’’40 Id., Vol. 1, 581. This root of ‘‘appreciate’’ is visible in modern English words

such as appraise, precious and depreciate.41 Id., Vol. 3, 630�631. This derivation is visible in modern English words such as

apprehend and prehensile.42 Onions (1966), 142, 667. The terms ‘‘capacity’’ and ‘‘capable’’ were also dis-

cussed in terms of the MIND IS A CONTAINER metaphor, supra note 24 and accompa-nying text, and ‘‘capacity’’ is also an important instantiation of MENTAL POWER IS

PHYSICAL POWER, discussed in the text below. The fact that the same words caninstantiate more than one metaphor is natural. See the discussion of cross-meta-phorical coherence, infra notes 74�79 and accompanying text.

‘‘Perceive’’ is also related to the Latin percipere, ‘‘to seize.’’ Onions (1966), 667;Oxford English Dictionary, Vol. 11 (1989) 520.

CARL S. BJERRE114

legal discourse, as when we refer to ‘‘mental illness’’ or ‘‘braindeath.’’ Similarly, Lloyd refers to a person being insane, and this issimply the negative of the word ‘‘sane’’ which derives from termsmeaning ‘‘healthy’’.43 Lloyd also refers to a person being mentallyinfirm, which carries a primary sense of physical weakness or illhealth.44 Finally, Lloyd refers to a disease of the mind, and the pri-mary meaning of ‘‘disease’’ is clearly physical, even without refer-ence to the word�s root in ‘‘ease’’ meaning ‘‘absence of pain’’.45

The metaphor�s more specific form is MENTAL POWER IS PHYSICAL

POWER. (This form is a subset of MENTAL WELL-BEING IS PHYSICAL

WELL-BEING because having physical power is one attribute of a per-son who is in a state of health or well-being). Sutcliffe and Lloydboth refer to intellectual or mental weakness, Lloyd refers to mentalfeebleness, and Sutcliffe refers to mental strength, all terms in whichthe physical meaning seems to be more prominent, if not histori-cally earlier, than the mental.46 Sutcliffe refers to a sound mind, anadjective that often means ‘‘healthy,’’ as in the phrase ‘‘sound mindand body’’ so often used in wills.47 Lloyd refers to imbecility, whichapparently derives from the expression ‘‘without a stick,’’ in thesense of being without physical support and therefore physicallyweak.48 And three phrases from Sutcliffe all have senses relatingdirectly to physical power: inability to realize, capable of transact-ing, and power to comprehend. (The terms inability and capable areboth based on the adjective ‘‘able,’’ which seems primarily to refer

43 Id., Vol. 14, 457, Vol. 7, 1013. The Latin root is sanus and the French root is

sain. The OED does not give a physical sense for ‘‘insane’’ in English, and notes that‘‘sane’’ is almost entirely restricted to the mental sense. But the physical roots of theword are visible in current English words such as ‘‘sanitarium’’ and ‘‘sanitary,’’ and

the evolution from a physical to a mental meaning evidently occurred in the sourcelanguages, before the words were brought over into English.

44 This sense is echoed in the current English ‘‘infirmary,’’ and in the Spanish and

Italian enfermo and infermo meaning ‘‘sick.’’45 Oxford English Dictionary, Vol. 5 (1989), 33.46 The OED shows the physical sense of ‘‘strong’’ to substantially predate the

mental sense, though the physical and mental senses of ‘‘weak’’ and ‘‘feeble’’ seem tobe roughly coeval. Id., Vol. 16, 946�951; Vol. 20, 33�37; Vol. 5, 798.

47 E.g., In the Matter of the Estate of Janya Krokowsky, 182 Ariz. 277 (1995). Thefact that the word ‘‘sound’’ in this phrase applies to both mind and body tends to

show that the word has the same sense in both connections. See J. Lyons, Semantics,Vol. 2 (Cambridge: Cambridge University Press, 1977), at 405�409 (phrases such as‘‘She arrived in a taxi and a flaming rage’’ are zeugmatic and may indicate that theshared word ‘‘in’’ has two different functions or meanings).

48 Onions (1966), 462.


to physical strength.49 Similarly, the term power derives from sour-ces such as the French pouvoir, meaning ‘‘be able,’’ and the idea of‘‘act[ing] upon a person or a thing’’ is prominent in the OED�s firstdefinition of the term.50)

Finally and most significant as an instantiation of MENTAL POWER IS

PHYSICAL POWER, the central term capacity (from all three opinions) hasat least three clear senses relating to physical power. The first two,which are relatively minor senses of the word, are ‘‘holding power,’’which relates to the size of a container, discussed above, and ‘‘the pow-er of absorbing heat, etc.,’’ as in the capacity of a conductor of electric-ity.51 But of greatest interest is the third power-related sense of‘‘capacity,’’ namely the important law-related sense of role, office, posi-tion or authority. This is the sense of the word that is illustrated byphrases such as ‘‘I am signing this agreement only in my individualcapacity, and not as agent of Acme corporation’’ or ‘‘In my capacity asSheriff, I hereby place you under arrest.’’ And it is clear that this senserefers to powers, at least in a general sense: certain roles confer powersthat a person would not otherwise have, such as (in the Sheriff exam-ple) the power to arrest. But the real interest of this sense of ‘‘capacity’’arises only when we realize that such powers are more precisely called‘‘authority’’: occupying the role of Sheriff doesn�t physically enable ar-rest (except perhaps in trivial and accidental ways),52 and instead itmerely confers the authority to arrest.53 The distinction is betweenpower on the one hand and authority or legitimacy of the exercise ofpower on the other.

Notwithstanding the distinction, however, the role-related sense of‘‘capacity’’ does bear on physical power and not just on authority.This point is established first by examples from non-legal discourse,

49 Perhaps the term ‘‘able-bodied’’ is a retronym that became necessary after theterm ‘‘able’’ was expanded to cover non-physical abilities, much like the terms‘‘natural person,’’ ‘‘acoustic guitar’’ or ‘‘analog watch’’ became necessary in order to

preserve the historically primary senses of the nouns.50 Oxford English Dictionary, Vol. 12 (1989) 259.51 Id., Vol. 2, 857.52 Admittedly the person occupying the role of Sheriff might have access to things

like the keys to the local jail, and thus have the physical power to arrest, while thesame person in her private capacity might not. But most uses of the term, such as‘‘signing in my individual capacity rather than my corporate officer�s capacity,’’ donot involve facts such as these.

53 See, e.g., W. R. Bishin and C. D. Stone, Law, Language and Ethics (Mineola,New York: Foundation Press, 1972), 807 (considering the relationship of roles to

rules and viewing a role as ‘‘a master rule which reconciles and directs the actions ofthose who take it’’).

CARL S. BJERRE116

showing that the two concepts are metaphorically linked in people�sthoughts. Consider one natural phrase that a private actor might useto express a thought about the limits of governmental morals regula-tion: ‘‘It�s my house so I can do whatever I want in it.’’ What thespeaker is referring to is his or her personal authority, but with thephrase ‘‘can do’’ this meaning is expressed metaphorically in terms ofthe domain of physical power.54 By the same token, consider a sce-nario in which a sheriff carries out an act that she does not have theauthority for, for example an arrest for peaceful expression of dissent.One natural way that the victim might express a protest about thislack of authority is ‘‘You can�t do that!,’’ and this usage of the verbcan�t expresses the authority point metaphorically in terms of physi-cal power.55 Tellingly, a variety of other modal verbs of possibility,

54 As applied to the physical domain the phrase ‘‘can do’’ is true only within limits(because there are physical limitations on what the speaker can do even in his or her

own house), and in any case a statement that is equally true in the physical domaincould be made about someone else�s house. The only appropriate meaning of thephrase is the metaphorical one.

55 In this example, as applied to the physical domain, the phrase ‘‘You can�t dothat!’’ is clearly false, because by hypothesis the unauthorized arrest is in fact beingdone. Here, too, the only appropriate meaning of the phrase is the metaphorical one.

A note of caution might be order about characterizing ‘‘can’’ and ‘‘can�t’’ in thephrases above as metaphorical. Metaphor is at its heart a bringing together of twodifferent domains, and it is a question of degree and judgment whether one domain is

different enough from another to make a phrase truly metaphorical rather than amere matter of generality of discourse within a single domain. For example,describing an argument in terms of a fight is metaphorical for a person who sees

fights as literally including only physical conflict, but non-metaphorical for a personwho sees fights as literally including verbal or emotional conflict as well. G. Lakoffand M. Johnson (1987), 83�86. By the same token, I view ‘‘You can�t do that’’ in thetext above as metaphorical, because I generally understand physical power and

legitimacy of exercise of power as being different domains, but those with a morecomplacent view of the distribution of force in society might consider the legitimacypoint to be merely a subset of the physical point: what can be done is a fortiori

legitimately done.For an in-depth discussion of the law concerning abuse of governmental

authority and its metaphorical underpinnings, see S. L. Winter, ‘‘The Meaning of

�Under Color of� Law�’’, Michigan Law Review 91 (1991), 323. Among other things,Winter shows that the concept of ‘‘under color of law’’ in 42 U.S.C. § 1983 ispartially rooted in the same KNOWING IS SEEING metaphor discussed supra notes25�27 and accompanying text. Id. at 391�395. Additional examples of non-legal

discourse that support Winter�s KNOWING IS SEEING argument are ‘‘looking at theworld through rose-colored glasses,’’ ‘‘taking a jaundiced view,’’ and ‘‘seeing some-thing in a new light’’ or a ‘‘different light.’’ (Winter�s article goes on to explain that the

primary root of ‘‘under color of law’’ is the link of color to coats of arms and otherindicia of royal authority. Id. at 396�404.)


compulsion and the like work in the same way: ‘‘As a judge, I mustfollow the precedents,’’ ‘‘No, you are free to reach the right result,’’‘‘All the same, I feel constrained to rule against the defendant,’’ andso on.56

The phenomenon of performative utterances, too, shows thatthe role-related sense of ‘‘capacity’’ is closely related to physicalpower. Greatly simplifying J.L. Austin�s rich analysis,57 performa-tive utterances are those that affect the world rather than simplydescribing the world, as with the pronouncements ‘‘I now pro-nounce you husband and wife,’’ ‘‘We find the defendant guilty,’’ or‘‘I hereby bind Acme Corporation to this agreement.’’ Performativeutterances are characterized not by truth or falsity, but rather bywhat Austin calls felicity and infelicity or success and failure: asuccessful performative affects the world by the sheer fact of itspronouncement, while an unsuccessful one does not. And one ofAustin�s conditions for successful utterance of a performative isclosely tied to the role-related sense of ‘‘capacity.’’ If a personstands up in court at the conclusion of a trial and says ‘‘We findthe defendant guilty,’’ but the speaker is a spectator rather than amember of the jury, then the speaker lacks the authority to issue averdict and the purported act of convicting the defendant is unsuc-cessful.58 In sum, the role-related ‘‘capacity’’ in which a person acts isdirectly related to the success of his or her performative utterances,and is thus related in an unexpectedly rich and direct way to thepower to affect the physical world.59

56 Cf. E. Sweetser (1990), 49�75 (showing that the root sense of modal verbs, as in‘‘John must be home by ten (because his mother requires it)’’ is the basis for theirepistemic sense, as in ‘‘John must be home already (because I see his coat)’’).

57 See generally J.L. Austin, How To Do Things With Words, 2nd edn.(Cambridge: Harvard U. Press, 1975).

58 As Austin writes, ‘‘The particular persons . . . in a given case must be appro-priate for the invocation of the particular procedure invoked.’’ Id. at 34. Austinnotices that the English language contains various terms for failures of this condi-

tion, including ‘‘ultra vires,’’ ‘‘not entitled,’’ and, notably for purposes of this article,‘‘incapacity.’’The infancy-related meaning of ‘‘capacity’’ in contract law is explainedby this same reasoning. Contracts are performative utterances, and infancy is a

status-related grounds for the lack of success of those utterances.59 One illustration of this insight comes from the standard legal phrase power of

attorney. The phrase designates a performative utterance by which one individual

confers on another the authority to act on his or her behalf, and it is illuminating thatthis utterance is designated by the term ‘‘power.’’

CARL S. BJERRE118

4. The Realist Critique and the Mind�s Realities

The foregoing analysis of Paine, Sutcliffe and Lloyd has, in one sense,completely torn them apart. Once the various instantiations of themetaphors are taken away, virtually nothing remains, because almostevery significant word used in the excerpts has been revealed as partof one of the four metaphors.60 The judicial texts have been shreddedlike embroidered handkerchiefs in a basketful of kittens.

Paine, Sutcliffe and Lloyd were, of course, selected in part be-cause of the density of the metaphors they contain, and I do notmean to suggest that a similar process of metaphorical analysiswould quite so thoroughly shred every text, judicial or otherwise.But the pervasiveness of the metaphors shown here is useful forhighlighting the Legal Realist critique of metaphor, exemplified byFelix Cohen�s then-brash, now-canonical article entitled Transcen-dental Nonsense and the Functionalist Approach.61

4.1. Cohen�s critique of metaphor

If Cohen had directed his attention to this body of case law, hewould doubtless have derided the concept of mental capacity asbeing a ‘‘supernatural’’ or ‘‘metaphysical’’ reification,62 a meaning-less and obfuscatory rationalization for judicial decisions reached onother grounds. The purported explanations of mental capacity givenin cases like Paine, Sutcliffe and Lloyd, Cohen would have said, sim-ply fail to provide any genuine conceptual substance. Just as he didwith the location of a corporation, the personhood of a labor union,or the property rights involved in a trade name, Cohen would haveargued that the concept of mental capacity does not independently

60 The few other significant words in the excerpts are also interestingly meta-phorical, but those metaphors are omitted for brevity because not crucial to thisarticle�s arguments. It does, though, bear noting that aberration (in Lloyd) is aninstantiation of the common metaphor THINKING IS MOVING. Other common in-

stantiations of this metaphor are phrases such as ‘‘reach a conclusion,’’ ‘‘reach averdict,’’ ‘‘where does that argument take you,’’ ‘‘train of thought,’’ ‘‘mental block,’’‘‘his thoughts go in circles,’’ and ‘‘her thoughts wander.’’ The root of ‘‘aberration’’ is

the Latin for ‘‘wander,’’ as seen in contemporary English words like err, errant anderror. See generally Lakoff and Johnson (1999), 236. Uses of this metaphor inconnection with mental capacity are briefly discussed infra notes 119�20 and

accompanying text.61 F.S. Cohen, ‘‘Transcendental Nonsense and the Functionalist Approach,’’

Columbia Law Review 35 (1935), 809.62 Id. at 811, 813.


exist as a determinant of judicial decisions, any more than a Platonicessence does.63

When the vivid fictions and metaphors of traditional jurisprudence are thought ofas reasons for decisions, rather than poetical or mnemonic devices for formulatingdecisions reached on other grounds, then the author, as well as the reader, of the

opinion or argument, is apt to forget the social forces which mold the law and thesocial ideals by which the law is to be judged.64

Mental capacity would be another in the array of ‘‘magic �solvingwords� of traditional jurisprudence.’’65 On this line of thought ‘‘thereis no there there’’66 other than what judges smuggle in, and the pur-portedly august judicial pronouncements about mental capacity areonly so much inarticulate hand-waving. What is needed instead,Cohen urges, is a ‘‘functional approach’’ that, taking its lead fromadvances in the social sciences, will ‘‘more and more seek to map thehidden springs of judicial decision’’67 while also carrying out a pro-gressive ethical critique.68

63 Similar arguments are made throughout the realist literature as a part of thewriters� attack on formalism. See W. Twining, Karl Llewellyn and the RealistMovement (London: Weidenfeld and Nicolson, 1973), 10; E.A. Purcell, Jr., TheCrisis of Democratic Theory: Scientific Naturalism and the Problem of Value (Lex-

ington: The University Press of Kentucky, 1973), 74�94. For a more sophisticateddiscussion of metaphor as a masculine fiction that is necessary for judgment, see J.L.Schroeder and D.G. Carlson, The Appearance of Right and the Essence of Wrong:

Metaphor and Metonymy in Law, Cardozo L. Rev. 24/2481 (2003), 2514–15.64 F.S. Cohen (1935), 812. Llewellyn uses strikingly similar rhetoric in discussing

the remedies of an aggrieved seller of goods. He writes that the remedies issue is solvedby ‘‘locating a mythical � or should I say more accurately �mystical�? � essenceknown as Title, which is hung over the buyer�s head or the seller�s like a halo.’’ K. N.Llewellyn, ‘‘Through Title to Contract and a Bit Beyond,’’ New York University Law

Quarterly 15 (1938), 159, 165.On the subject of metaphor in particular, Hohfeld and Cardozo also famously

wrote of its tendency to obscure. Hohfeld wrote, ‘‘Much of the difficulty, as regards

legal terminology, arises from the fact that many of our words were originallyapplicable only to physical things; so that their use in connection with legal relationsis, strictly speaking, figurative or fictional.’’ W.N. Hohfeld, Fundamental Legal

Conceptions As Applied In Judicial Reasoning (Westport, Conn: Greenwood Press1978) (1919), 30. And Carzdozo wrote, ‘‘Metaphors in law are to be narrowly wat-ched, for starting as devices to liberate thought, they end often by enslaving it.’’

Berkey v. Third Ave. Ry., 155 N.E. 58, 61 (N.Y. 1926).65 F.S. Cohen (1935), 820.66 Gertrude Stein, Everybody�s Autobiography (New York: Random House, 1937),

289.67 F.S. Cohen (1935), 833.68 See generally id. at 829�849.

CARL S. BJERRE120

And at first blush, the degree to which Paine, Sutcliffe andLloyd are confected so thoroughly of metaphor does stronglysupport Cohen�s invective. Each of the three courts is making anearnest attempt to explain the concept of mind on which their deci-sions turn � but in each case a close look at the explanationsshows the concepts to be empty, or even worse: a dog�s breakfastof confused and nonsensical cacophony.69

4.2. The reality that the mind creates

At a deeper level, however, cognitive theory shows that an aston-ishingly high degree of order exists within the metaphorical expres-sions. Far from being empty, they are in fact deeply meaningful.This Part 4.2 outlines the empirical basis for these points, bringinglife and shape to the raw information that was presented in Part 3.After that, Part 4.3 suggests that this orderliness would likely haveled Cohen himself to welcome cognitive analysis, both in its meth-ods and in the apparent tendencies of its outcomes.

To begin with, there is a tremendous degree of order withineach of the metaphors presented above. Many of them obviouslyinvolve polysemy, that is, the fact of a single word or expressionhaving more than one related meaning (as ‘‘capacity’’ can refer tomental ability but also to containership, ‘‘sound’’ can mean men-tally healthy but also well-constructed, ‘‘see’’ can mean know butalso visually perceive, ‘‘scattered’’ can mean mentally disorganizedbut also physically disorganized, and so on). As discussed in Part2, English words often carry multiple senses, and no one would ar-gue that simple homonymy alone has any great significance,70 butthe multiple senses of ‘‘capacity,’’ ‘‘sound’’ and the other words atissue here are much more than mere homonymy, in that the multi-ple senses of these words are related to each other as the multiplesenses of ‘‘pen’’ are not. Each of the polysemies involved in thisarticle has both a physical, concrete sense and an abstract, mentalsense, and the relationship between the two senses is that we con-ceive of the latter sense metaphorically in terms of the former.

Moreover, the various polysemies show an inferential correspondencebetween each other, that is, a given polysemy coheres with, or makessense in conjunction with, the other expressions that instantiate the

69 The sheer volume, density, and multiplicity of allusions in the opinions seemsparticularly overwhelming in light of Part 3.2�s piece-by-piece analysis.

70 See supra text accompanying note 7.


same metaphor. Thus, within KNOWING IS SEEING, when someone�s mo-tives are transparent then it is easy to see what he or she intends to do,but a covert goal will not be known until it is revealed. A person�s bril-liant remark will shed a lot of light so that we understand in a flash. Andso on. Similarly, within THINKING IS OBJECT MANIPULATION, if a personthrows several big ideas at you at once, it may be hard to catch them all,and you might need to collect your thoughts. Many similar examples canbe adduced for each of the four principal metaphors discussed in thisarticle, as for other conceptual metaphors throughout the language.

These inferential correspondences help to bring out one reason whyso much of our common thinking about abstractions tends to be meta-phorical. The metaphors generally have their source domain in theconcrete world of our physical, motor, social and sensory experiences(touching, seeing, lifting, exchanging and so on), and their target do-main is generally in the abstract or mental realm (such as, for purposesof this article, thinking, understanding, reasoning, communicating,etc.). Our everyday experience gives us a great deal of immediateknowledge about the physical source domains, and we use this knowl-edge about the source domains in order to draw inferences about thetarget domains. From everyday life we know, for example, that trans-parent surfaces permit us to see the objects behind them, and that opa-que surfaces do not, and if KNOWING IS SEEING then we can use ourdirect knowledge about transparency and sight to construct inferencesabout knowledge. In cognitivist terms, metaphors have entailments,and we reason with these entailments in order to develop knowledgeabout abstract realms that we cannot directly touch or see or lift.71

(Perhaps for this reason, the various cross-domain correspondences ina given metaphor are each sometimes referred to as a mapping,72

71 E.g., M. Johnson, ‘‘Metaphor-Based Values in Scientific Models,’’ in L. Mag-

nani and N.J. Nersessian, Model-Based Reasoning: Science, Technology, Values(New York: Kluwer Academic/Plenum Publishers, 2002), 3 (showing how ourknowledge of a source domain structure is used ‘‘to construct a parallel knowledge of

the target domain’’).72 Id. As a rough cut, it may help to understand the concept of mapping ‘‘in the

mathematical sense of a set of ordered pairs, where the first element of each pair is fromthe source domain and the second is from the target domain.’’ R. Jackendoff andD. Aaron, Review article, Language 67 (1991), 320, 335 (reviewing George Lakoff andMark Turner, More Than Cool Reason: A Field Guide to Poetic Metaphor (Chicago:

University of Chicago Press, 1989)). However, understanding metaphorical mappingin terms of mathematical mapping is itself a metaphor, and this metaphor like othershas come to be rejected in favor of one based on neural theory. See G. Lakoff and

M. Johnson (1987), 252�257; S.L. Winter (2001a), 27�36 (discussing neural andmetaphorical mappings).

CARL S. BJERRE122

because the same kind of multi-point parallelism exists between asource domain and a target domain, on one hand, and between a givenspatial terrain and its cartographical representation, on the other.73)

Inferential correspondence is not limited to expressions within asingle metaphor: it also reaches, even more powerfully, across met-aphors. Notice that all three of our judicial opinion excerpts use atleast three of this article�s four metaphors for mind, and that twoof the three excerpts use all of the four metaphors.74 And as alogically obvious but practically important corollary, none of thethree excerpts depends on only one metaphor � in other words, themetaphors in each of the excerpts are ‘‘mixed.’’ The term ‘‘mixedmetaphor,’’ of course, is almost always used pejoratively, but this isonly because most users do not notice the many occasions onwhich mixed metaphors are used in a way that is not objectionable.A phrase like ‘‘I smell a rat, but I will nip him in the bud’’75 in-volves impermissibly mixed metaphors, because the entailments ofits two principal metaphors (perhaps VILLAINS ARE ANIMALS andTHWARTING IS TRUNCATING) do not overlap. Rats do not have budsto be nipped in. By contrast, a phrase like ‘‘Now I see the pointthat went past me before’’ involves equally mixed metaphors(KNOWING IS SEEING and THINKING IS OBJECT MANIPULATION), but themixing in this case is permissible, because the entailments of thetwo metaphors do overlap. Objects that have passed can sometimesbe seen � especially when one looks back at them.76

73 It is interesting to observe that this sense of the word mapping is itself meta-

phorical, as are the terms ‘‘source’’ and ‘‘target’’ domains, which speak of meaningor concept-formation in terms of projectiles. The literal roots of the word metaphoritself mean ‘‘to carry over,’’ and the original historical extension of that term to refer

to meaning is also metaphorical. For a discussion of this point see S.L. Winter(2001a), 53 ff.

74 The only minor misfit is Paine, which has no instantiation of MENTAL WELL-

BEING IS PHYSICAL WELL-BEING.75 Adapted from a 1790 speech by Boyle Roche in the Irish Parliament, quoted in

Bryan A. Garner, A Dictionary of Modern American Usage 426 (New York: OxfordUniversity Press, 1998)

76 See G. Lakoff and M. Johnson (1987), 91�96. The metaphorical use of thephrase ‘‘look back at’’ is echoed by the word ‘‘review,’’ which now has a purelymental meaning but formerly meant ‘‘see again.’’ Oxford English Dictionary, Vol. 13(1989), 831.

The limited and therefore pejorative use of ‘‘mixed metaphor’’ is, in this way,much like the word ‘‘coercion’’ in Hale�s view. See Robert L. Hale, ‘‘Coercion andDistribution in a Supposedly Non-Coercive State,’’ Political Science Quarterly 38

(1923), 470 (arguing that coercion, properly understood, applies far beyond the usualcontext of contracts that are voidable on the grounds of duress).


Similarly, Paine refers in a single sentence to whether the grand-father could ‘‘collect’’ and ‘‘retain’’ elements ‘‘in his mind’’ for longenough to ‘‘perceive’’ their ‘‘obvious’’ relations, and this sentencealone uses three of the four principal metaphors (THINKING IS OB-

JECT MANIPULATION, THE MIND IS A CONTAINER, and KNOWING IS SEE-

ING). But this mixing of metaphors makes perfect sense to usbecause the three sets of entailments overlap: in the physical worldit is entirely natural to maintain control of OBJECTS by placing themin a CONTAINER, and to derive knowledge from them by SEEING

them, and because these physical domains overlap so naturally, weunderstand the target domains as doing so, too.77 A similar processof drawing harmoniously on several different metaphors at once isshown by the other opinions, and by discourse in general, whether

77 A number of similar coherences can be drawn among this article�s four principalmetaphors. For example, on a global level, THINKING IS OBJECT MANIPULATION co-heres with MENTAL POWER IS PHYSICAL POWER in that greater physical power entailsgreater ability to manipulate objects. Thus we speak metaphorically of handlingweighty matters, having a strong grasp of a subject, and brushing away the fluff. And

on a more particular level, cross-metaphorical coherences account for the fact that anumber of phrases from Paine, Sutcliffe and Lloyd appeared under more than one ofthe metaphors. For example, ‘‘capacity’’ and ‘‘capable’’ were discussed in connection

with both the OBJECT MANIPULATION and the CONTAINER metaphors, and thissemantic overlap is natural, because taking an object (with one�s hand, for example)is much like containing something in a container. The other sense of ‘‘capacity’’

meaning ‘‘role’’ was discussed in connection with the PHYSICAL POWER metaphor, butit also relates to the CONTAINER metaphor: Steve Winter points out that it is con-ventional to speak of persons as acting in a certain capacity or as occupying a role

(and that these are particular cases of the widespread and more general STATES ARE

LOCATIONS metaphor). S.L. Winter, ‘‘Death is the Mother of Beauty,’’ Harvard LawReview 105 (1992), 745, 768 (reviewing Thomas C. Grey, The Wallace Stevens Case:Law and the Practice of Poetry (Cambridge: Harvard University Press, 1991). And in

a sustained discussion of the metaphors for power, he shows that power is conceivedin terms of a resource that ‘‘can be accumulated and stored, as in a container,’’ untilone is ‘‘powerful (i.e., �full� of power).’’ S.L. Winter, ‘‘The �Power� Thing,’’ VirginiaLaw Review 82 (1996), 721, 752�753 (italics in original).

‘‘Perceive’’ was discussed in connection with both the SEEING and the OBJECT

MANIPULATION metaphor, and this indicates the deep fact that the concept of seeing

itself is metaphorically related to the domain of physical manipulation, as illustratedby phrases such as ‘‘run your eyes over my draft’’ or ‘‘pick out Waldo from thecrowd.’’ See E. Sweetser (1990), 38.

Sweetser speaks in terms of a single overall metaphor that she calls the Mind-As-

Body Metaphor. Id. at 28. She might see this article�s four principal metaphors assubsets of a single metaphor, THEMIND ISA BODY. Whether one lumps or splits on thissubject does not seem to be of much practical importance, in light of the fact that

inferential correspondence takes place both within single (larger) metaphors andacross several (smaller) metaphors.

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legal or non-legal. And this phenomenon is of great value for therichness and utility of our abstract concepts. It is true that eachmetaphor, as seen above, has numerous entailments even whentaken on its own. But these entailments are limited: as Lakoff andJohnson remark, ‘‘To say that something is viewed as a CONTAINER

OBJECT with an IN-OUT orientation does not say very much aboutit’’.78 The source domain of any single metaphor structures the tar-get domain, but when the target domain is particularly importantor complex (as with the notable example of the mind), each do-main offers only a partial structuring. To help round out the struc-turing of complex concepts, we naturally reach for other,complementary source domains with overlapping entailments.79

In addition to polysemy and inferential correspondence, a thirdremarkable type of order at work here is the phenomenon of novelextensions, which carry the idea of inferential correspondence onestep further. We all routinely invent brand new metaphoricalexpressions that fit seamlessly into already-existing conceptual net-works. To take just one example, a colleague of mine, recalling herdays in law school, described having studied so much for a tax lawexam that she was ‘‘afraid to tip her head.’’ We know from dailylife that if a container is tipped, its contents can spill out and be-come useless, and so this casual expression, though invented on thefly in the course of casual discourse, fits intricately and perfectlyinto the rest of the metaphorical system that we are calling THE

MIND IS A CONTAINER.80 It shows that the network of correspon-

dences is even more finely meshed than a scouring of the dictionarywould reveal, and indeed that it is indefinitely extendible.

78 Lakoff and Johnson (1987), 61. The authors detail elsewhere the particularentailments of the concept of containership. See M. Johnson, The Body in the Mind:

The Bodily Basis of Meaning, Imagination, and Reason (Chicago and London: Uni-versity of Chicago Press, 1987), 21�23 (five concepts related to spatial boundednessor enclosure: protection, restraint, fixity, accessibility or inaccessibility, and transi-tivity); George Lakoff, Women, Fire, and Dangerous Things: What Categories Reveal

About the Mind (Chicago and London: University of Chicago Press, 1987), 272�273.79 On the other hand certain metaphors for mind, or for other complex concepts,

are not consistent with each other. See generally G. Lakoff and M. Johnson (1999),248.

80 The ease with which novel extensions are generated and understood lends

further aptness to the metaphor of cross-domain mapping. By analogy, if the cornerof 14th and Broadway is mapped onto a grid at point E10, and the corner of 125thand Broadway is mapped onto the same grid at point C30, it is fairly easy to

determine that the corner of 66th and Broadway lies at or around point D21, even ifthat corner has not been pre-designated on the grid.


In fact, much of the polysemy that one does find in the dictio-nary was doubtless originally developed through what, at the time,were novel extensions. And this point leads us to the final type oforder to be discussed here: diachronic semantic change. Words thatnow refer principally to the mind (or to knowing or ideas or mentalwell-being) formerly referred exclusively to physical containers (orto sight or objects or physical well-being, respectively), and the cur-rent mental meanings are clearly derived from the former physicalmeanings. For example, today we use comprehend only to talkabout a mental phenomenon, but the word comes from the Latinprehendere, meaning to seize, a manipulation-of-objects sense that isclearly linked to today�s ‘‘mental seizing’’ meaning of the word.Similarly, today�s mental term confusion comes from the Latin fun-dere, meaning to pour or mingle together, another manipulation-of-objects sense that is clearly linked to today�s ‘‘mental mingling’’meaning of the word. Today�s term non compos mentis (which onemight have thought obsolete until reading the cases) comes from theLatin for to put together or to compose. Today�s slang term crazyseems to come from a Norse root meaning ‘‘to crack’’,81 and thelink between the historical meaning of a cracked container and to-day�s meaning of mental incapacity is clear. As a last example, al-ready touched on above, today�s term deranged derives from thesame root as the words ‘‘arrange’’ and ‘‘rank,’’ and once again thelink is clear between that historical meaning (grounded in the meta-phor that THINKING IS OBJECT MANIPULATION) and today�s mentalmeaning.

The Berkeley linguist Eve Sweetser, in particular, has arguedthat much of historical semantic change is attributable to meta-phor. In her simple and powerful words, ‘‘If a word once meant Aand now means B, we can be fairly certain that speakers did notjust wake up and switch meanings on June 14, 1066. Rather, therewas a stage when the word meant both A and B.’’82 The dual-meaning stage to which Sweetser refers is the direct historical coun-terpart of the polysemies that we have already noticed in today�slanguage. And the fact that the initial duality of meaning hasgrown more or less invisible to today�s speakers does not detractfrom the metaphorical nature of the modern word: the fact thatthe word describes a target domain in terms of a source domain

81 Onions (1966), 226. This explains why the word ‘‘crazed,’’ in the context ofpottery, means having a cracked glaze.

82 E. Sweetser (1990), 9.

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remains true, whether the original imaginative projection is done bythe speaker herself or by a forebear many generations removed. Iwould go so far as to say that diachronic semantic change is reallya form of intellectual history � not the history of elite thought thatis usually designated by that term, but the history of thought fromthe ground up. It is intellectual history based on life as it was livedby innumerable language-users whose names and stories are nowlost, but whose creative thinking processes are preserved in the his-torically shifting meanings of today�s superficially stable words.83

Overall, there is great explanatory power, elegance, and com-mon sense in the cognitivist concepts sketched above. As an empiri-cal matter the claim that our abstract discourse is highly orderly isundeniable, and it is hard to remain unconvinced that this linguis-tic orderliness is far from accidental and in fact corresponds to anunderlying conceptual orderliness. The figurative expressions inPaine, Sutcliffe and Lloyd are not a dog�s breakfast but a feast, nota cacophony but an open-ended orchestral composition.

83 The term ‘‘dead metaphor’’ is sometimes misleadingly used to refer to wordssuch as these, or to other metaphorical expressions that have become convention-alized. E.g., G. Lakoff and M. Turner (1989), 55; H.W. Fowler, A Dictionary of

Modern English Usage (London: Oxford University Press, corr. ed. 1937), 348–49.This term � which is itself a metaphorical expression � fails to distinguish betweenconceptual metaphors and the particular metaphorical expressions that instantiate

them. See supra Part 2. Though a given conventionalized expression is no longeractive in the conscious imagination of present day speakers, that same expression willoften be part of a metaphor that remains very much alive in other instantiations. See,

e.g., S.L. Winter (2001a), 47�56. Winter uses the example of ‘‘perception’’ (which asnoted above derives from the Latin ‘‘to take’’) and shows that it is part of theConduit Metaphor, supra note 28, which remains very much alive in expressions suchas ‘‘The professor delivered a superb lecture, but only the exceptional students were

able to take it all in. The less gifted students had to struggle before they grasped thepoint.’’ Id. at 51�54. Cf. L. Fuller, ‘‘Legal Fictions,’’ Illinois Law Review 25 (1930),363, 373–77.

Nietzsche�s powerful passage about the way that metaphors grow invisible withthe passage of time is also relevant here: ‘‘What then is truth? A mobile army ofmetaphors, metonyms, and anthropomorphisms…. Truths are illusions about which

one has forgotten that this is what they are; metaphors which are worn out andwithout sensuous power; coins which have lost their pictures and now matter only asmetal, no longer as coins.’’ F. Nietzsche, ‘‘On Truth and Lie in an Extra-MoralSense,’’ in The Portable Nietzsche, ed Walter Kaufmann (New York: Penguin Books,

1977), 46�47. See generally R.W. Emerson, ‘‘The Poet,’’ in Essays and Lectures(New York: Library of America, 1983), 457 (‘‘The etymologist finds the deadestword to have been once a brilliant picture. Language is fossil poetry.’’); J. Derrida,

‘‘White Mythology: Metaphor in the Text of Philosophy’’, in Margins of Philosophy(Chicago: University of Chicago Press, 1982, Alan Bass trans.).


4.3. Cohen and the cognitive approach

The concept of capacity that Felix Cohen would have so harshlyderided turns out not to be empty, but to be full of meaning. Theconcept that he would have dismissed as purely metaphysical turnsout to be deeply rooted in physical daily life. While Cohen of courseis right that the metaphors examined here designate nothing intrinsi-cally determinate in the world, the other side of that coin is that thesemetaphors have nonetheless become relatively determinate by virtueof our shared and consistent patterns of thought. Men and womenlive, think, act and adjudicate as if there are realities such as mentalcapacity, and metaphors are a large part of the way that that living,thinking, acting and adjudicating happens. The title of Lakoff andJohnson�s first book resonates deeply: metaphors are indeed justhuman creations, but they are human creations that we live by.

Accordingly, at a deeper level, even Cohen � despite his condem-nation of metaphor � would surely have welcomed the cognitive ap-proach to metaphor into legal analysis, had he lived to see it flower.84

This is true in at least three related ways. First, one of Cohen�s centralthemes (and one of the Legal Realists� in general) is that judges areactive creators of the law rather than mere passive appliers of it.85 Co-hen�s scorn for ‘‘metaphysical’’ legal concepts is designed to under-score his insight that judges are free to (and do in fact) shape thoseconcepts with their decisions, rather than vice versa. Laudatorilyparaphrasing a passage from Bertrand Russell, Cohen writes that ‘‘weare to redefine the concepts of abstract thought as constructs, or func-

84 Winter has written wide-rangingly on the kinship between legal realism andcognitivism, and on the ways that the latter has developed the initial insights of theformer. See S.L. Winter (2001a), passim, 42 (‘‘if Llewellyn and the other legal realistswere alive today, they would be the first to turn to the study of the mind better to

understand life and law’’); S.L. Winter, ‘‘Making the Familiar Conventional Again,’’Michigan Law Review 99 (2001b), 1607.

Winter also shows that Cohen�s Transcendental Nonsense piece is subject to the

same reliance on metaphor that Cohen himself condemns, and thereby makes a pointabout ‘‘the ubiquity and necessity of metaphor in human thought.’’ See S.L. Winter,‘‘Transcendental Nonsense, Metaphoric Reasoning, and the Cognitive Stakes for

Law’’, University of Pennsylvania Law Review 137 (1989), 1105, 1161. Winter callsthis point ‘‘obvious,’’ and indeed it is, but not until one has spent some time andthought absorbing the cognitivist analysis of language in one or more specific con-

texts, such as the capacity context explored in this article or the other sustainedtreatments undertaken by Lakoff, Johnson, Winter or Sweetser, among others. Seealso infra note 95.

85 See e.g., F.S. Cohen (1935), 842 (essence of realistic jurisprudence is ‘‘the def-inition of law as a function of judicial decisions’’).

CARL S. BJERRE128

tions, or complexes, or patterns, or arrangements, of the things thatwe do actually see or do.’’86 And the cognitive approach to metaphormakes the same point about human abstract concepts in general: notonly is there no ‘‘heaven of legal concepts’’;87 there is no heaven ofabstract concepts of any kind. Instead, say the cognitivists, our ab-stract concepts are humbly and richly earthbound due to their originin daily physical life. Cohen�s own words fit the cognitivist viewpointwith striking prescience: abstract thoughts are, again, ‘‘constructs’’and ‘‘arrangements’’ of ‘‘the things that we do actually see or do.’’

The second strong resonance between Cohen�s article and the cog-nitive approach arises from the first. Cohen�s insights about law�scontingent, plastic nature led him to call for scrutiny of ‘‘what courtsdo in fact’’.88 He maintained that there are ‘‘significant, predictable,social determinants’’ that ‘‘govern the course of judicial decision’’,89

and that ‘‘[l]egal criticism is empty’’ without ‘‘objective description’’ ofthose causes.90 And similarly, cognitive science, with its inter-disciplinary focus on understanding the operations of the human mind,is devoted precisely to an objective description of those determinants.91

Cohen acknowledges only in passing that judges are human,92 but

86 Id. at 826.87 Id. at 809.88 Id. at 816. Cf. O.W. Holmes, Jr., ‘‘The Path of the Law’’, Harvard Law Review

10 (1897), 457, 461 (‘‘the prophecies of what the courts will do in fact, and nothingmore pretentious, are what I mean by the law’’). Cohen himself quotes this clarionpronouncement no less than three times. F.S. Cohen (1935), 828, 835.

89 Id. at 843.90 Id. at 849. Cf. K.N. Llewellyn, ‘‘Some Realism About Realism � Responding to

Dean Pound’’, Harvard Law Review 44 (1931), 1222, 1236�1237 (famously calling forthe ‘‘temporary divorce of Is and Ought for purposes of study,’’ because ‘‘no judgmentof what Ought to be done in the future with respect to any part of law can be

intelligently made without knowing objectively, as far as possible, what that part oflaw is now doing’’). See generally J.H. Schlegel, American Legal Realism and EmpiricalSocial Science (Chapel Hill and London: University of North Carolina Press, 1995).

91 It is true that some of the cognitive sciences do not obviously fit under Cohen�srubric of the ‘‘social’’ determinants of judicial action, because some of them tend to bemore infra- than intra-personal. But Cohen�s reference to the ‘‘social’’ cannot fairly be

read as dismissing them, particularly in light of the explicit attention that Cohen givesto the importance of the insights of psychology. E.g., F.S. Cohen (1935), 834.

92 Id. at 843. Max Radin lingered longer on the idea, writing with mock anthro-

pological gravity, ‘‘Judges, we know, are people. I know a great many. Some weremy school-mates � some I met elsewhere than in school. They eat the same foods,seem moved by the same emotions, and laugh at the same jokes. Apparently, they are

a good deal like ourselves.’’ M. Radin, ‘‘The Theory of Judicial Decision: Or HowJudges Think’’, American Bar Association Journal 11 (1925), 357, 358.


there is great importance in that simple fact, because much of the disci-pline that we call legal thinking is just a subset of the ordinary think-ing. This article�s treatment of mental capacity is just one indicationthat cognitivism�s insights do have strong explanatory power as ap-plied to judicial thinking.93 All in all, with its emphasis on sub-conscious patterns, cognitive analysis can be seen as a remarkablydirect response to Cohen�s call to ‘‘to map the hidden springs of judi-cial decision’’.94

Even without more, then, it becomes clear that the cognitivisttreatment of metaphor is something that Cohen would have wel-comed as a kind of friendly amendment to his own work, notwith-standing his simple condemnation of metaphor as being empty andobfuscatory.95 The cognitivist treatment of metaphor was obviouslynot within the scope of Cohen�s thinking, because it has begun todevelop only during the decades after his death. But just as asound theory of contract interpretation makes allowances for lan-guage gaps not foreseen by the parties, so must a sound under-standing of intergenerational legal history.

And Cohen�s realism resonates with cognitive analysis on a thirdlevel as well, namely a substantive orientation toward progressive re-form. In terms of the Is and Ought of which Llewellyn called for the‘‘temporary divorce’’,96 this third level is a matter of the Ought,while the first two levels discussed above were matters of the Is (orshould we say the Is Not, in the case of the non-transcendent natureof concepts). As applied to the subject of contractual mental capacity,a discussion of the third level is more complex than the first twobecause it introduces an alternative, progressive streak in the case law.

93 A great deal of Steve Winter�s work has been devoted to the same thesis, asapplied not only to metaphor but also to other aspects of the cognitive sciences. Seealso Symposium, ‘‘Cognitive Legal Studies: Categorization and Imagination in the

Mind of Law,’’ Brooklyn Law Review 67 (2002), 941.94 See supra notes 65�68 and accompanying text. Cohen�s paraphrase of Russell,

supra note 86 and accompanying text, resonates here as well, as does Cohen�s verynext sentence (which also seems to be intended as part of the paraphrase): ‘‘Allconcepts that cannot be defined in terms of the elements of actual experience aremeaningless.’’ F. S. Cohen (1935), 826 (emphasis added). The call for study of the

roots of human decision-making and the rejection of concepts as anterior to humanconstruction are flip sides of each other.

95 This point presents no inconsistency either with Winter�s point that the cogni-tivist approach to metaphor is ‘‘quite different’’ from the one that Cohen articulatesin his Transcendental Nonsense piece, Winter (1989), 1160 n. 167, or with his dis-cussion of Cohen�s own reliance on metaphor, see supra note 84.

96 See supra note 90.

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5. The Possibility of Progress

Paine, Sutcliffe and Lloyd represent the view that has remained domi-nant since the 19th-century emergence of modern American contractlaw: mental capacity is based solely on whether a person has power tounderstand the transaction. However, in a few jurisdictions in recentyears, a progressive minority position has emerged that adds a secondcriterion. According to the progressive position, a person has mentalcapacity only if she has power to understand the transaction and also isable to ‘‘act in a reasonable manner in relation to [it]’’.97 One examplemight be a person suffering from the manic stage of bi-polar disorder:faced with a proposal for a disadvantageous contract, she may have afine understanding of the fact that it is disadvantageous but nonethelessbe unable to avoid entering into it.98 Under the traditional approach tocapacity, this person would be bound by the contract, but under theprogressive approach she would not. Thus the addition of the volitionalelement represents a more forgiving (or, depending on one�s ideologicalposition, more lax) position with respect to the obligations representedby contract, and this of course is what makes it progressive.

This broader view of the circumstances under which a personshould be excused from obligations corresponds to a broader viewof what constitutes adequate mental power. Consistent with basictenets of contract law,99 both the traditional and the progressiveviews decline to bind persons whose minds cannot genuinely

97 E.g., Restatement (Second) of Contracts § 15(1)(b). This approach first emergedduring the 1960s in a lower-court case from New York, Faber v. Sweet Style

Manufacturing Corp., 242 N.Y.S.2d 763 (Sup. Ct. 1963), and in the drafts of theSecond Restatement of Contracts, which was finally published in 1981. While theRestatement�s formulation was still in draft, the highest court of the State of New

York adopted those drafts� approach in the well-known case of Ortelere v. Teachers�Retirement Board of the City of New York, 303 N.Y.S.2d 362, 250 N.E.2d 460(1969) (Breitel, J.). Completing a nice little pas de deux, the commentary to the finalversion of the Restatement cites the Ortelere case as support for the new test.

Restatement (Second) of Contracts § 15, comment b and Reporter�s Note (1981 andsupps.).

98 See Diagnostic and Statistical Manual of Mental Disorders: DSM-IV 357�358,382 (Washington, D.C.: American Psychiatric Association, 1994) [hereinafterDSM-IV] (describing a complex of symptoms including ‘‘increase in goal-directed

activity’’ such as ‘‘simultaneously tak[ing] on multiple new business ventureswithout regard for the apparent risks’’); cf. Faber v. Sweet Style Mfg. Co., 40Misc.2d at 215 (‘‘manic-depressive psychosis affects motivation rather than abilityto understand’’).

99 See supra note 1 and accompanying text.


embrace the contract, but the two views represent starkly differentassessments of which minds qualify for that dispensation. (And thetraditional approach can by no means be dismissed as merely a dis-sipating holdover from older benighted times. Only a few jurisdic-tions have embraced the progressive approach,100 and a number ofjurisdictions continue to steadfastly embrace the traditionalapproach even today.101) At issue are questions much more basicthan what the legal rule should be. The questions go, instead, tothe nature of the mind: What does a properly functioning mind dowith respect to a transaction? What is a properly functioning mindwith respect to a transaction? What counts as mental power that isindispensable to personal autonomy?

And the two approaches� differing answers to these questionscorrespond in significant part to the shaping effects of metaphor.Metaphors do not simply help to constitute concepts; they inevita-bly help to constitute them in certain ways, with certain contours.It is the nature of every metaphor is to highlight some aspects ofthe target domain � those that fit into the cross-domain map-ping102 � while concomitantly hiding other aspects of the targetdomain. Simply speaking, some similarities are played up and somedissimilarities are played down.103 This overall simplifying effect

100 In addition to the New York courts, Massachusetts has adopted it, as haveTexas, Maine and perhaps a small number of other states. The first such Massa-chusetts opinion was authored by Justice Robert Braucher, who not coincidentallywas the initial Reporter for the Restatement (Second) of Contracts. See Krasner v.

Berk, 319 N.E.2d 897. In Texas, see Nohra v. Evans, 509 S.W.2d 648 (Ct. Civ. App.1974), and for Maine�s remarkably unthoughtful treatment, see Bragdon v. Drew,658 A.2d 666 (Me. 1995); Estate of Marquis, 822 A.2d 1153 (Me. 2003). See also

Gore v. Gadd, 522 P.2d 212 (Or. 1974) (‘‘[a]ssuming, without deciding,’’ that thevolitional element should supplement the traditional element, while finding the evi-dence to be insufficient to permit avoidance of the contract on either ground).

Forman v. Brown, 944 P.2d 559 (Colo. Ct. App. 1996) is inapposite because itslanguage about volition relates only to the subject of insane delusions, a differentbranch of the law from that being examined here. Overall, virtually no jurisdictions

have embraced the volitional test since the 1970s, let alone in a conscious and pur-posive manner. This makes all the stronger the point that the traditional approach isno mere holdover.

101 See infra notes 109�114 and accompanying text.102 See supra note 72 and accompanying text.103 See G. Lakoff and M. Johnson (1987), 10�13, 157�158. More precisely, the

cross-domain correlations give rise to perceptions of similarity, rather than high-lighting similarities that are already there in some perceiver-independent way. Id. at

244�245; cf. T. W. Joo, ‘‘Contract, Property, and the Role of Metaphor inCorporations Law’’, U.C. Davis Law Review 35 (2002), 779, 784–86.

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is at the root of metaphor�s utility in helping to constitute ourconceptualization of a target domain.104 And if, in the traditionalcase law, the concept of capacity is derived principally from thefour metaphors that shape Paine, Sutcliffe and Lloyd, then what isbeing simplified away are precisely those aspects of the mind thatcorrespond to taking action in the real world. In the metaphors ofPaine, Sutcliffe and Lloyd the source domains are generally passive,that is, they do not involve features from which mappings relatingto action in the world can be drawn. A CONTAINER, for example, isa fairly passive receptacle that is filled or emptied by external for-ces and that exercises force only over its own contents rather thanover the rest of the world.105 The predominant metaphors of thetraditional case law, then, hide the aspects of mind that relate toaction in the world, self-control, or freedom of choice, and accord-ingly those aspects of the mind simply don�t count.106

104 In a haunting passage that gives new depth to metaphor theory�s mappingimagery, Borges captures this inevitable linkage between simplification and utility:

‘‘. . .In that Empire, the Art of Cartography attained such Perfection that the map ofa single Province occupied the entirety of a City, and the map of the Empire, theentirety of a Province. In time, those Unconscionable Maps no longer satisfied, and

the Cartographers Guilds struck a map of the Empire whose size was that of theEmpire, and which coincided point for point with it. The following Generations, whowere not so fond of the Study of Cartography as their Forebears had been, saw thatthat vast Map was Useless, and not without some Pitilessness was it, that they

delivered it up to the Inclemencies of Sun and Winters. In the Deserts of the West,still today, there are Tattered Ruins of that Map, inhabited by Animals and Beggars;in all the Land there is no other Relic of the Disciplines of Geography.’’ J.L. Borges,

‘‘On Exactitude in Science,’’ in Collected Fictions (New York: Viking, 1998, AndrewHurley trans.), 325. With his characteristic self-masking Borges attributes this pas-sage to ‘‘Suarez Miranda, Viajes de varones prudentes, Libro IV, Cap. XLV (Lerida

1658).’’105 The source domain of PHYSICALWELL-BEING, and especially its subset PHYSICAL

STRENGTH, initially appears to be an exception to the passivity point, but upon

further reflection the active forces being exercised in these metaphorical mappingsare only within the mind, and not on the outside world. For contrasting exercises offorce on the outside world, other metaphors are needed. See infra notes 119�120 and

accompanying text.106 As Johnson writes in the context of metaphors for the concept of attention,

‘‘[t]he source domain of a particular metaphor determines the �ontology� of the targetdomain, and thereby determines what counts as relevant phenomena. . .. The meta-phor tells you what to take as important.’’ M. Johnson (2002), 13. Cf. S.L. Winter,‘‘The Metaphor of Standing and the Problem of Self-Governance,’’ Stanford Law

Review 40 (1988), 1371, 1500 (articulating the features that are highlighted orsuppressed by the individualist metaphor of ‘‘standing’’ in litigation).


Against this background, the case for enlarging the concept ofcapacity to include a volitional element is compelling. If concepts likecapacity are judicially constructed, then they are judicially modifi-able, and now that psychiatry has shown the traditional approachnot to adequately cover cases such as bi-polar disorder it is indefensi-ble to ignore that learning.107 The analogy with physical duress isstrong: it is inconsistent with contract�s ideals of autonomy to bind aperson whose apparent consent is the product of compulsion.108 Itshould be immaterial whether the compulsion stems from without orfrom within, particularly when the compulsion from within is prov-able by means of psychiatric evidence.

And yet the progressive approach has not been very successfulin the courts.109 Ortelere v. Teachers� Retirement Board of the Cityof New York, the first case to firmly establish the volitional ele-ment, was decided over a dissent,110 and succeeding decisionsquickly narrowed Ortelere�s holding to apply only to affirmativeacts rather than failures to act.111 Ortelere�s only lower-court ante-cedent was vehemently rejected in California on the very weak

107 See DSM-IV (1994), 357�62, 382�401; Ortelere, 250 N.E.2d at 464 (‘‘Thesetraditional standards governing competency to contract were formulated whenpsychiatric knowledge was quite primitive. They fail to account for one who by

reason of mental illness is unable to control his conduct even though his cognitiveability seems unimpaired. When these standards were evolving it was thought that allthe mental faculties were simultaneously affected by mental illness. This is no longerthe prevailing view.’’) (citations omitted).

108 Restatement (Second) of Contracts § 174. There is of course a competingconcern related to upholding the predictability of contract. See infra note 116 and

accompanying text. But contract law has been easily able to yield on this front in thecase of duress.

109 See also E.A. Farnsworth, Contracts, 4th edn (New York: Aspen Publishers,

2004), 229 (traditional approach ‘‘is almost universally accepted by the courts’’).A similar, more widely known story of conservatism can be told about the

insanity defense in criminal law. See, e.g., J. Kaplan et al., Criminal Law (New York:

Aspen Publishers, 2004), 579�628 (recounting the growth of theM’Naghten rule intothe ALI�s volition-accommodating Model Penal Code, and the sudden retrenchmentthat followed John Hinckley�s attempted assassination of Ronald Reagan).

Regarding a metaphoric dimension of discourse in the Hinckley case, see infra note120.

110 Ortelere, 25 N.Y.2d at 206.111 E.g., McCarthy v. Levitt, 399 N.Y.S.2d 301 (App. Div. 1977).

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basis of a Civil Code provision that any first-year law studentcould have sidestepped.112 The supreme courts of two other stateshave also expressly rejected the volitional element, one of them onfacts involving a person suffering from bi-polar disorder � the para-digmatic case that would justify liberalizing the law in this area.113

Other jurisdictions remain stonily silent about the volitional element,even when presented with the same opportunity for progressive dictathat other jurisdictions (including, arguably, the Ortelere court itself)moved to embrace.114 Overall, the volitional element has encoun-tered at least as much rejection as it has acceptance, where it has notbeen ignored altogether.

There is a further marker of the progressive approach�s haltingtrajectory: even the authorities that do recognize the volitional ele-ment also limit it with a requirement that the other party ‘‘havereason to know’’ of the first party�s lack of capacity.115 The reason-ing for imposing this requirement is an asserted need to ‘‘balanc[e]competing policy considerations,’’ namely the protection of theindividual on one hand and the protection of the stability or pre-dictability of contract on the other.116 But identically competingpolicy considerations also affect the traditional approach, and thetraditional approach is not subject to any similar reason-to-knowrequirement.117 In fact, such a requirement has been explicitly re-jected in connection with lack of power to understand, notably in

112 Smalley v. Baker, 69 Cal. Rptr. 521 (App. Div. 1968), rejecting Faber v. SweetStyle Mfg. Co., supra note 97.

113 McAlister v. Deatherage, 523 So.2d 387 (Ala. 1988) (reversing summary

judgment against buyer of real property who suffered from bi-polar disorder butadhering to traditional view of capacity); Estate of McGovern v. State Employees�Retirement Board, 517 A.2d 523 (Pa. 1986).

114 E.g., Hauer v. Union State Bank of Wautoma, 532 N.W.2d 456 (Wisc. App.1995); In Re Nellie K. Ellis, 822 S.W.2d 602 (Tenn. App. 1991).

115 See Restatement (Second) of Contracts § 15(1)(b) (‘‘he is unable to act in areasonable manner in relation to the transaction and the other party has reason toknow of his condition’’) (emphasis added); Ortelere, 25 N.Y.2d at 205 (endorsing the

draft version of the Restatement requirement).116 Id.117 E.g., Restatement (Second) of Contracts § 15(1)(a); Orr v. Equitable Mortgage

Co., 33 S.E. 708 (Ga. 1899) (‘‘since an insane person is incapable of making acontract, the mere fact that the other party to an alleged contract did not know of the

incapacity would not restore the capacity to contract’’); E.A. Farnsworth (2004),229.


Sutcliffe. The Sutcliffe court wrote, ‘‘It is no defense that the otherparty acted fairly and without knowledge of the want of mentalfaculty or of any circumstances which ought to have put him oninquiry.’’118

One explanation for this inertia in the case law can be found inthe power and coherence of metaphor. The four metaphors under-lying cases like Paine, Sutcliffe and Lloyd are intuitively appealing,convincingly coherent and very workable until one matches themup against the volitional aspects of mind that they hide. The voli-tional aspect of the mind, too, might establish itself firmly in thecase law if it were argued and adjudicated in terms of a similarlywell-developed system of metaphors, with similar networks of pro-jections from the domains of daily physical and social life. Judgingfrom existing cognitive work, one would anticipate that a meta-phorical system supporting capacity as volition would center onsource domains such as MOTION, COMPULSION and LINEARITY, be-cause these are closely associated with causation and free will. Asone example, the earliest forthright volition case in the contractsarea quotes approvingly from a reference to action ‘‘under the con-trol of an insane impulse. . .which deprived him of the capacity of

118 232 Mass. at 233. Intriguingly, even before its supposed emergence in the1960s with Faber, Ortelere and the Restatement (Second), the volitional element ofmental capacity already appears to have led a quiet but inconsequential life, where

it appears doubtful that any reported decisions turned on it. One early treatisewriter explains the ‘‘correct definition’’ of insanity in part as follows: ‘‘The mentaldisorder must be such as to deprive the person affected of moral freedom of action,

and weaken or destroy the governing powers of the mind over the actions. Man,being a free moral agent, is bound by his choice of action, however weak his willmay be as opposed to the impulse to act, provided he has the opportunity of choice.When the mind is diseased to a sufficient extent, he has not such power of choice,

but his physical being must follow where the vagaries of the diseased mind lead.’’G.A. Smoot, Law of Insanity (Kansas City, Mo.: Vernon Law Book Company,1929), 9. Along the same lines, the U.S. Supreme Court summarized the jury

instructions in a mental capacity case by referring to the ability to execute ‘‘acontract . . . or other instrument requiring volition and understanding. . ..’’ Dexter v.Hall, 82 U.S. (15 Wall.) 9, 20 (1873). (Interestingly, the actual jury instructions in

this case are also reported, but contain no reference to volition as opposed tounderstanding. Hall v. Unger, 11 F. Cas. 261 (1867). One can only conclude thatthe volitional element was taken for granted by the Justices.) And the editions of apedestrian, hardly-innovative legal encyclopedia that circulated between the 1960s

and 1980s stated that capacity requires each party not only to ‘‘appreciate the effectof what he is doing,’’ but also ‘‘to be able to exercise his will with referencethereto.’’ Estate of Farris, 159 N.W. 417 (Iowa 1968) (quoting 17 C.J.S. Contracts §

133(1)(a)); Lloyd, 544 So.2d at 959 (quoting same); Knight v. Lancaster, 988S.W.2d 172 (Tenn. App. 1998) (quoting same).

CARL S. BJERRE136

governing his own conduct in accordance with reason.’’119 The pro-gressive case law already contains a few similar examples,120

though this body of law is still too sparse to support much of adescriptive account. We can already see two points. First, the dis-course on the volitional aspects of capacity will tend to be just asmetaphorical as the traditional judicial discourse on understanding.And second, the metaphors for volition will tend to be differentfrom the metaphors for understanding. Both of these points accordnicely with what one would expect based on cognitive theory: vary-ing ways of conceiving the mind will be expressed with varying setsof dominant metaphors. And accordingly, differing metaphors cantend to support differing degrees of liberality in the case law.

By showing first that the traditional approach has no sole or a prioriclaim to conceptual legitimacy, and second that a volitional supplementto capacity law can potentially be just as legitimate, cognitive analysishelps to open the way to substantive and progressive reform of this area

119 Faber v. Sweet Style Mfg. Corp., 242 N.Y.S.2d at 768. On the metaphorical

conceptualization of causation and free will, see, e.g., Lakoff and Johnson (1999),170�234. As the authors explain, ‘‘action is conceptualized . . . as self-propelled move-ment and difficulties in acting as things that impede self-propelledmovement.’’ Id. at 190.As illustrations fromeveryday speech theygive examples suchas ‘‘castingoffchains’’ and

‘‘opening doors,’’ which accord with the metaphors from Faber given in the text.120 For example, Ortelere refers to ‘‘persons whose contracts are merely uncon-

trolled reactions to their mental illness.’’ 25 N.Y.2d at 205. Another New York casecharacterizes Ortelere as ‘‘the impulse test,’’ and speaks of an ‘‘eccentricmind’’ and ofpersons who are unable to ‘‘control their conduct.’’ In the Matter of the Estate of

ACN, 509 N.Y.S.2d 966 (Surr. Ct. 1986). Similar metaphors appear in another NewYork case, Fingerhut v. Kralyn Enterprises, Inc., 337 N.Y.S.2d 394 (Sup. Ct. 1971).Another case using the volitional approach refers to ‘‘the erratic and irrationalconduct’’ of the person who made the contract. Farnum v. Silvano, 540 N.E.2d 202

(Mass. App. 1989). And another refers to ‘‘motivation, or exercise of will,’’ ‘‘dis-tort[ion of] the will, and ‘‘free volition.’’ Nohra v. Evans, 509 S.W.2d 648 (Tex. Civ.App. 1974). (In addition, the prosecution�s closing argument in the Hinckley case, see

supra note 109, presents a rich opportunity for analysis of related metaphors forvolition. The text of that closing argument is available at http://www.law.umkc.edu/faculty/projects/ftrials/hinckley/hinckleytranscript.htm.)

Space precludes a close analysis of these metaphorical expressions, but it shouldbe clear that they all invite analysis using the tools that were discussed in Part 4.2 (thatis, polysemy, inferential correspondence, novel extensions and diachronic semanticchange). And the Faber court�s use of ‘‘under’’ fits with the widespread metaphor

CONTROL IS UP. See, e.g., S. L. Winter (1991), 391 (discussing ‘‘under color of law’’).Expressions such as these dovetail well with the expressions used in connection

with duress. This not only reinforces the doctrinal parallel drawn above (see supra

note 108 and accompanying text) but also helps to establish why that parallel mightseem appropriate in the first place.


of the law. (A similar progressive tendency also appears elsewhere in thestill-emerging body of cognitive work as applied to law,121 and this ten-dency makes sense for two related reasons. First, formalism in law tendsto be conservative122 and cognitivism is pervasively anti-formalist.123 Andsecond, cognitivism shows existing orders to be human constructions andthereby makes them to vulnerable to normative criticism.124) In this waythe third level of continuity between the realists and the cognitivists emer-ges. It is certainly clear that Cohen and the realists were committed toprogressive law reform,125 and cognitivism�s tendency to open up the

121 See, e.g., S.L. Winter (1988), 1515 (calling for the metaphor of standing to bereanimated so as to encompass altruism rather than individualism); S.L. Winter

(1989), 1234�1236 (grounding his attraction to a cognitivist view of law in his expe-riences with the civil rights movement); G. Minda, Boycott in America: How Imagi-nation and Ideology Shape the Legal Mind (Carbondale: Southern Illinois University

Press, 1999); C.S. Bjerre, ‘‘Project Finance, Securitization and Consensuality’’, DukeJournal of Comparative and International Law 12 (2002), 411 (using the concept ofscalar categorization to question the categories of consensual transaction and true

sale); A. Coles-Bjerre, ‘‘Preferential Transfers, Plain Meaning and the Patterns ofCognition’’, to appear (using image-schema transformations to establish the legitimacyof competing approaches to preference avoidance in bankruptcy).

122 E.g., R.J. Mooney, ‘‘The New Conceptualism in Contract Law,’’ Oregon LawReview 74 (1995), 1131, 1151; Jay M. Feinman, Un-Making Law: The ConservativeCampaign to Roll Back the Common Law (Boston: Beacon Press, 2004); J.M. Fein-

man, ‘‘Un-Making Law: The Classical Revival in the Common Law’’, Seattle Uni-versity LawReview 28 (2004), 1. Cf. D.Kennedy, ‘‘Form and Substance in Private LawAdjudication’’, Harvard Law Review 89 (1976), 1685.

123 One aspect of this anti-formalism is cognitivism�s emphasis, illustrated by thisarticle, on the fact that abstract language does not conform to reality in some single,objectively correct way. Cognitivism�s treatment of categorization, which is beyond the

scope of this article, is perhaps an even more powerful aspect of its anti-formalism. See,e.g., G. Lakoff (1987); C.S. Bjerre, ‘‘Definition-Building and Cognition,’’ to appear(analyzing the phenomenon of contractual and statutory definitions that extend mark-

edly beyond conventional usage); S.L.Winter (2001a), 186�222 (showing thatmany so-called rules actually operate like standards due to the non-classical nature of categories).

124 As Winter puts it, ‘‘to expose the infrastructures of legal reasoning is also to

facilitate a more penetrating critique, one that cuts to the very root of suffocatingconventional wisdom.’’ Id. at xiii.

125 Cohen writes that ‘‘[t]he functional approach permits ethics to come out ofhiding,’’ and calls for ‘‘bring[ing] into play a critical theory of values.’’ F.S. Cohen(1935), 847, 849. On a more general level, Morton Horwitz makes clear that ‘‘[f]ormany purposes, it is best to see Legal Realism as simply a continuation of the

reformist agenda of early-twentieth-century Progressivism.’’ M.J. Horwitz, TheTransformation of American Law 1870�1960: The Crisis of Legal Orthodoxy (NewYork and Oxford: Oxford University Press, 1992), 169. See generally L. Kalman,

Legal Realism at Yale 1927�1960 (Chapel Hill and London: University of NorthCarolina Press, 1986).

CARL S. BJERRE138

existing legal order to legitimate alternatives is very much in accord.Cognitivism�s commitment to empirical reality126 need not entail any lackof interest in reform, and as applied to the law there has been no suchlack of interest. The separation of empiricism and reform is at most, inLlewellyn�s words, only a ‘‘temporary divorce of Is and Ought for pur-poses of study’’.127

Nonetheless, the reformist dimension of cognitive analysisshould not be overstressed. The overwhelming lesson of cognitivework across all of its fields has been that the patterns of humanthought are deeply wedded to life�s physical and social realities.128

And those lived realities are part and parcel of the inertia of thestatus quo. As applied to the construction (judicial and otherwise)of legal concepts, this means that the dominant metaphors areinherently rooted in the ways that we live today,129 and this facttends to reinforce the prevailing patterns of judicial thought. Ittends to cause judges and others to think naturally in status quoterms rather than in innovative ones, and it can even tempt judgesor others to avoid whatever conceptual innovations they may none-theless encounter for the sake of being persuasive.130 In all, the in-sight that abstract concepts such as mind or understanding orvolition do not have fixed and determinative content is no practicallicense for untrammeled or radical innovation. The true lesson ofcognitive analysis of metaphor is one of both liberation and con-straint. Abstract concepts are human creations, but those creationscome about in large part through interaction with the world, and

126 See supra notes 88�94 and accompanying text.127 K.N. Llewellyn (1931), 1236 (italics in original).128 The fact that the metaphors for understanding (supra Part 3) and volition

(supra notes 119�120 and accompanying text) are so clearly tied to the physical and

social experiences of containing, seeing, being physically compelled, and so on, is aclear illustration of this principle.

129 The influence of diachronic semantic change, supra notes 81�83 and accom-

panying text, enriches this point somewhat, but only by also rooting our concepts inthe ways that our linguistic forbears formerly lived, centuries ago � hardly a spur toreformism in its unconstrained varieties.

130 Winter makes a similar point on a more general level: ‘‘law works as �law�because the social processes of persuasion mean that judges will be constrained toreplicate the most mainstream values and understandings.’’ S.L. Winter, ‘‘The Next

Century of Legal Thought?’’ Cardozo Law Review 22 (2001), 727, 771 (reviewingDuncan Kennedy, A Critique of Adjudication: Fin de Siecle (Cambridge and London:Harvard University Press, 1997)). As a result, law ‘‘enforces (and reinforces) the

dominant normative views of the culture.’’ Id. See also S.L. Winter (2001a), 357; S.L.Winter (2001b), 1636.


therefore we do not have a wholly free hand in shaping or reshap-ing them.

6. Conclusion

I hope to have shown in this article that the traditional approachto contractual mental capacity has no sole claim to legitimacy, andthat it would be equally legitimate � though equally metaphorical� to expand capacity doctrine to encompass a volitional element.The metaphorical nature of both competing approaches may ini-tially be startling, but to insist upon their metaphorical nature is byno means to criticize the soundness of the concepts. Metaphor isnot incompatible with legal reasoning, or with reasoning in general� on the contrary, it is an intrinsic part thereof. The lesson for le-gal analysis is not to shun metaphor, or to seek liberation from it,but rather to realize that this aspect of thought is part of how thelaw functions, and that we can use it as an opening for reformthough we must also live within its constraints.

The cognitivist complex of ideas � of which metaphorical analy-sis is only one aspect � holds great potential for the advancementof legal theory. The essential role that it reserves for creative indi-vidual and social meaning-making provides a fresh ground fromwhich to continue the modern critique of classical, deductivist,mechanical legal reasoning. But at the same time, the constrainedand world-bound nature of that creativity should be a comfort tothose who seek to carry out their reforms at a measured pace. Inthis generation of legal theory as in that of the realists, we shouldbear in mind Lon Fuller�s eloquent image of Society and Law, orLlewellyn�s Is and Ought, as two blades of a pair of scissors. Bothblades cut, but neither can cut without the other.131

University of Oregon School of LawEugene, Oregon 97403-1221USAhttp://www.law.uoregon.edu/faculty/cbjerre/

131 Lon L. Fuller, ‘‘American Legal Realism,’’ University of Pennsylvania LawReview 82 (1934), 429, 452

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